Free Minds & Free Markets

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Is the 21st Amendment a Free Pass for Liquor Protectionism?

Tennessee alcohol merchants are asking the Supreme Court to uphold an absurd residency requirement that shields them from competition.

Institute for JusticeInstitute for JusticeIf you want to sell liquor in Tennessee, a state law requires that you live there for at least two years before seeking a license. And if you want to renew that one-year license after it expires, you need to show that at some point you lived in Tennessee for at least 10 consecutive years. On Wednesday, the 100th anniversary of the 18th Amendment's ratification, two lawyers told the Supreme Court those blatantly protectionist rules are constitutional thanks to the 21st Amendment, which repealed the 18th but recognized that states retained the authority to ban alcohol within their borders.

Notably, neither of those lawyers represented Tennessee, which stopped enforcing the residency requirements after the state's attorney general concluded they were unconstitutional. A federal judge and an appeals court agreed, and now the Tennessee Wine and Spirits Retailers Association (TWSRA) is asking the Supreme Court to overrule them. Shay Dvoretzky, the TWRSA's lawyer, was joined on Wednesday by Illinois Solicitor General David Franklin, speaking for his state and 34 others. Carter Phillips represented the respondents, who include the owners of a Memphis liquor store they are not allowed to operate because they recently moved there from Utah.

Dvoretzky and Franklin both argued that Tennessee does not need a plausible public health or safety justification for what amounts to a 12-year residency requirement for liquor retailers. Franklin even conceded that "it's hard to see a rational basis" for that rule, which "seems like a trap for the unwary." But he agreed with Dvoretzky that the rationale for the regulation does not matter under the Commerce Clause, because "the 21st Amendment gives states virtually complete control over how to structure their domestic liquor distribution systems."

When it comes to alcohol, Dvoretzky and Franklin said, the ordinary "dormant Commerce Clause" analysis, which frowns on economic regulations that discriminate against people from other states, does not apply at all. That means courts should uphold a discriminatory alcohol regulation even when its defenders forthrightly admit that it serves no purpose other than shielding entrenched interests like the merchants represented by the TWRSA from competition.

Justice Brett Kavanaugh pushed back on this reading of the 21st Amendment, the relevant provision of which says "the transportation or importation into any State...for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." On its face, Tennessee's 12-year residency requirement for retailers has nothing to do with importing prohibited liquor into the state. "When you say 'virtually complete authority,'" Kavanaugh said, "the text of the 21st Amendment does not support that, as I read it....It's talking about the transportation or importation into any state. And why isn't that most naturally read to allow states to remain dry and, therefore, ban transportation or importation, but not to otherwise impose discriminatory or...protectionist regulations?"

Justice Samuel Alito was similarly skeptical. "The 21st Amendment is about the transportation or importation of alcohol into a state," he told Dvoretzky. "How do you get from there to a durational residency requirement that is imposed on the owner of a retail outlet in the state?"

The Supreme Court has already said the 21st Amendment is not a free pass for alcohol-related protectionism. In Bacchus v. Dias (1984), the Court rejected an excise tax exemption designed to favor local distillers in Hawaii over out-of-state competitors, and in Granholm v. Heald (2005) it said Michigan and New York could not constitutionally prohibit out-of-state wineries from shipping their products directly to consumers while allowing in-state wineries to do so. The TWRSA wants the justices to read those precedents as applying only to discrimination against manufacturers.

"I know you want to limit it to producers," Justice Sonia Sotomayor said to Dvoretzky, "but that's not the way that Granholm talked about...this issue." She also noted that if the Commerce Clause has no relevance in cases involving state alcohol regulation, as Dvoretzky maintained, Bacchus and Granholm must have been wrongly decided.

Justice Samuel Alito asked Dvoretzky to imagine "a grandfathers clause" that says "you can't get a liquor license in Tennessee unless your grandparents were Tennessee residents." Dvoretzky said that would also be constitutional, because alcohol regulations are not subject to Commerce Clause scrutiny, a position that is inconsistent with what the Court held in Bacchus and Granholm.

Phillips, the lawyer representing the respondents, urged the justices to follow through on the logic of those precedents. "There is no rational basis for the two-year ban that they've put in place here," he said. "The Tennessee attorney general himself has twice looked at this ban and said it doesn't remotely serve any purpose that's designed under the 21st Amendment when we're dealing with alcohol or public safety or public health or anything else. It's only designed to exclude us."

That argument seemed to resonate with several justices, but there was also concern that overturning Tennessee's rule would invite challenges to other longstanding aspects of state alcohol regulation, including the "three-tier system" of segregated producers, wholesalers, and retailers. The Court has repeatedly said that system is within the authority granted by the 21st Amendment, even though it discriminates against out-of-state businesses in some ways.

Justice Neil Gorsuch suggested that an "Amazon of alcohol" could argue that states violate the Commerce Clause when they stop online retailers from selling beer, wine, and liquor directly to consumers. Phillips said his clients have no interest in challenging the three-tier system, but that did not really answer the question of whether the principle on which they are relying implies that courts should overturn other stupid, anti-competitive restrictions on the distribution of alcoholic beverages. Would that be such a bad thing?

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Will Tulsi Gabbard’s Anti-LGBT Past Sink Her Presidential Candidacy? And Should It?

Most politicians have evolved on gay issues. But not all were directly connected to anti-gay organizations.

Tulsi GabbardMike Segar/REUTERS/NewscomDemocratic Hawaii Rep. Tulsi Gabbard announced her candidacy for president last weekend with an emphasis on reducing America's involvement in foreign wars. That itself has drawn criticism, as the current political climate has led a chunk of the Democratic establishment to see any scaling back of the U.S.'s military presence in countries like Syria as some sort of gift to Russian President Vladimir Putin.

But beyond that, Gabbard has a legitimately troubling family history of opposition to LGBT rights. That background flared up this week as her candidacy received coverage, and yesterday she released a video fully apologizing for her history of anti-gay activism.

Gabbard and her family didn't just oppose same-sex marriage in the late 1990s and early part of the millennium. They were politically active in an organization, The Alliance for Traditional Marriage and Values, that worked to amend Hawaii's constitution to prohibit the legal recognition of same-sex couples. The organization argued that homosexuality was subversive and dangerous, and Gabbard's father endorsed conversion therapy to turn gay people straight. (Her father loudly opposed gay rights, even hosting a radio show called Let's Talk Straight Hawaii.) Gabbard acknowledged her work with the organization when she ran for state office when she was 21.

Gabbard's views on LGBT issues have evolved since then, as have those of many politicians, both Democrat and Republican. But since her past went a lot further than just simply expressing opposition to gay marriage, she's got a longer hill to climb. In 2012 she took responsibility and apologized for her anti-gay background in a meeting with Hawaii's Democratic Party LGBT Caucus. She has gotten endorsements from the Human Rights Campaign, the top LGBT national lobbying organization, and during her time in Congress she has supported many pro-gay pieces of legislation.

But apparently that's not stopping some rather fliply dismissive comments now that she's actually running for president. I was baffled by this tweet from journalist Soledad O'Brien on Twitter, acting as though Gabbard has just suddenly changed her positions because she's running for president:

I found O'Brien's response particularly odd because, well, as a journalist, you'd think O'Brien would appreciate candidates who actually directly address the criticisms they've been getting from the media. And you might think that O'Brien, as a journalist, might have checked to see if this was even a new development from Gabbard before she tweeted. It's not, and Gabbard now has a lengthy legislative record we can examine to decide whether her votes actually match her transformation. (They do.)

So I responded to O'Brien, observing: "Gosh, I hope nobody is ever similarly dismissive to any wisdom you've picked up as you've gotten older. I've had to forgive many, many people's less-than-stellar grasp of LGBT issues." (And this is true. When Proposition 8 passed in California in 2008, banning recognition of same-sex marriage, I had several professional acquaintances who voted for it. I worked through it. I learned to craft better arguments. It's what being a politically engaged adult is all about.)

To my surprise, O'Brien replied, and we had a brief exchange:

Twitter exchangeTwitter

I still find O'Brien's response to be weird and somewhat telling. Gabbard's responding to actual criticism and dealing with an issue that could sink her chances of a Democratic nomination. That's what candidates are supposed to do. Should she have ignored it? When Hillary Clinton ran for president, she also needed to contend with her previous record of opposing legal recognition of gay marriage, and to win over older LGBT voters who remembered the calculating politics of President Bill Clinton's era.

But Gabbard is also a bit of an outsider among the Democrats, potentially serving as this run's Bernie Sanders–esque, thorn-in-the side candidate. (She supported Sanders in 2016.) And so we get these weird, flippant, dismissive responses intended to try to shut down even the possibility of engagement or discussion.

Maybe Gabbard's past ties to anti-gay activism will make her radioactive to voters in the Democratic primaries. She may have gotten the Human Rights Campaign's support, but she has not been able to earn the trust of that LGBT caucus in her home state. Though even there, it turns out that some people are upset that her evolution is much less about suddenly deciding that gay marriage is awesome and more about realizing that she doesn't believe she should be using the government to force her religious beliefs on others. Apparently, the fact that she's voting in favor of every pro-gay piece of legislation isn't enough for some if she doesn't also feel the right things in her heart.

I think that's silly, stupid nonsense. When people with conservative backgrounds decide that it's wrong to use government power to restrict people's private relationships, that's a big win for individual liberty and for LGBT people. Stop looking for the affection and blessings of the politically connected, and focus on making sure they support the right policies.

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New California Governor's Spending Plans Will Run Up Against Fiscal Reality: New at Reason

California's fiscal foundation is built on rock, says Gov. Gavin Newsom, but it's really more like sand.

Mike Blake/REUTERS/NewscomMike Blake/REUTERS/NewscomGavin Newsom was inaugurated as California's 40th governor last Monday, taking over a general-fund budget that is flush with cash and a state government that is in remarkably good shape—at least superficially—from a fiscal perspective. For all his flaws, outgoing Gov. Jerry Brown left Newsom with a $15 billion surplus and a rainy day fund that is nearly full. As an added plus, the economy that is humming along even though an erratic stock market points to storm clouds on the horizon.

The big question is whether Newsom will heed Brown's advice and govern as if there's always a recession around the corner—or ignore the former governor's warnings about Democratic lawmakers who always say "yes" to any "harebrained" spending scheme. Unfortunately, based on Newsom's inaugural words, initial budget and many of his early high-level administrative appointments, the safe money is on the latter. Newsom wants to spend big.

One need not read between the lines in Newsom's introductory words. He spelled it out clearly. Newsom pointed to Brown's inaugural address, which quoted from the Sermon on the Mount. There was the foolish man who built a house on sand and the wise man who built it on rock. "For eight years, California has built a foundation of rock," Newsom said. "Our job now is not to rest on that foundation. It is to build our house upon it."

But that financial foundation might be built less on rock and more on sand, writes Steven Greenhut.

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Georgia's 'Mimosa Mandate' Is a Victory for Alcohol Freedom

Now restaurants can sell alcohol on Sundays as early as 11:00 a.m.

MimosaDavid Tran / DreamstimeBottoms up, Georgia residents: Among the slew of measures that voters passed in the November midterms, perhaps none was as vital as the "Brunch Bill," which allows cities and counties to let restaurants serve alcoholic beverages as early as 11:00 a.m. on Sundays, as opposed to the previously sanctioned 12:30 p.m. (The bill itself passed the state legislature in early 2018, but local communities held referenda during the midterms on whether to take advantage of the new rules.) Now the law is gradually taking effect, with Grovetown up next this weekend.

Boozy brunchers in several municipalities—from Atlanta to Athens to Savannah—can be two sheets to the wind before noon, peach mimosas in tow. But that's not the only reason to raise a glass.

"Each restaurant would generate about an extra $25,000 a year, because it roughly boils down to about $480 on a Sunday," Karen Bremer, CEO of the Georgia Restaurant Association and cognoscente of all things dining-related in the Peach State, tells Reason. That doesn't account for the impact on individual servers and bartenders, who will pocket more tips thanks to higher tabs and to patrons who might be, well, happier than usual. If adopted in every municipality, Georgia's roughly 4,000 restaurants could bring in an additional $100,000,000 in revenue.

Why stifle alcohol sales when they're clearly the miracle elixir society needs? Michelle Minton of the Competitive Enterprise Institute explained to Reason last year that the antiquated restrictions stem from blue laws, which limit Sabbath Day activities on religious grounds. Those were especially popular following the repeal of Prohibition. "When the states decided to legalize [alcohol] again, a lot of them instituted blue laws," said Minton, "and it's taken this long for most of the states to slowly get rid of them."

South Carolina state law still prohibits the sale of liquor on Sundays, and retail wine and beer can only be sold if a local ordinance allows it. In Maine, you normally can't indulge until 9:00 a.m., though the law makes an exception on St. Patrick's Day. (You can get shamrocked starting promptly at 6:00 a.m.) And when Christmas falls on a Sunday, Massachusetts bans off-premises alcohol sales on Monday, because the state can't miss out on an extra opportunity to deprive people of joy. The Bay State has also outlawed happy hours.

To make matters worse, Georgia's ban on morning drinking only applied to privately owned companies; government buildings have been free to let the booze flow. That disconnect is what inspired Republican State Sen. Renee Unterman to draft what's affectionately been called her "mimosa mandate."

Bremer tells AccessWDUN that she expects "many, many more counties and cities" to hold Brunch Bill initiatives this year. Cheers to that.

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Mitch McConnell Predicted the GOP Tax Cut Would Raise Revenue and Reduce the Deficit. Nope.

A year after the tax law, growth is up but tax revenue is down.

Olivier Douliery/picture alliance / Consolidated/NewscomOlivier Douliery/picture alliance / Consolidated/NewscomFor years, the supply-side argument that tax cuts "pay for themselves" has been an article of faith among Republican lawmakers. The idea, which dates back decades, is that lowering tax rates will result in an increase in economic activity and a commensurate increase in tax revenues that makes up for any revenue lost to rate reductions.

The evidence for the stronger versions of this proposition has always been weak at best; growth can offset some revenue losses, but it rarely produces enough revenue to completely "pay for" a tax cut. Yet it has persisted in Republican circles because of its political convenience: It provides a tidy and simple justification for tax cuts without spending cuts.

Its influence has remained strong during the Trump presidency. At the end of 2017, for example, when Republicans passed the Tax Cuts and Jobs Act, Mitch McConnell insisted that this was exactly what would happen. "I not only don't think it will increase the deficit," he said, "I think it will be beyond revenue-neutral. In other words, I think it will produce more than enough to fill that gap."

There was no reason to believe this at the time. Not one credible analysis of the tax law—even from pro-tax-cut, GOP-friendly sources—saw this as a likely result. And now that the tax bill has in place for a year, there is still no evidence that it's happening, nor any evidence that most Republicans are reconsidering the party dogma.

Yes, economic growth has exceeded expectations. But as Jim Tankersly writes in The New York Times, "the additional tax revenue has yet to show up, even with stronger growth." In fact, the federal government's tax revenue dropped by about $83 billion. The Tax Foundation, which tends to favor tax reductions, has revised its estimate of the likely deficit increase stemming from the law from $450 billion to about $900 billion over the next 10 years. The tax law has made the deficit larger, and it is likely to continue making it larger over time.

That doesn't mean that tax cuts have to increase the deficit. The deficit is simply the gap between the federal government's revenues and outlays—what it brings in and what it spends. The trick to avoiding a larger deficit is to offset tax cuts with spending cuts.

But that is not what McConnell did. A few months after ushering the tax bill into law, he helped broker a deal with Democrats that increased domestic spending (a Democratic priority) in exchange for increasing military spending (a Republican priority).

As with reducing taxes, raising spending also expands the deficit.

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Has the Women's March Outlived Its Usefulness?: New at Reason

Maybe feminists need to join other causes.

Feministskennethkonica on Foter.comIt'll be interesting to see what kind of turnout the third annual Women's March can muster tomorrow. But it's safe to say it won't be anything like the millions who showed up in Capitol Hill after Trump's inauguration in a collective "yuck," writes Reason Foundation Senior Analyst Shikha Dalmia. Fear and loathing of Trump is not sufficient to sustain a mass movement.

The Women's March has been roiled in controversy, as its organizers and members have been unable to set aside their political disagreements and personality conflicts and coalesce around on a common agenda. In the last few years, it has fielded complaints of anti-Semitism, too much whiteness, insufficient wokeness, and more.

It would be a mistake to dismiss such problems as mere teething pains. When women confront genuine and endemic discrimination, they are able to set aside their differences and come together. That's what happened in Kerala, India, this month when five million women formed a 385-mile human chain to protest gender discrimination at a temple that bans menstruating-age women.

That American women can't seem to do the same might suggest that their collective feeling of oppression is not the stuff of a mass movement.

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Henry Hazlitt Meets Peter Kropotkin's Daughter

Friday A/V Club: A little chat about Stalin

G.P. Putnam's SonsG.P. Putnam's SonsWhen Alexandra Kropotkin appeared on the talk show Longines Chronoscope in 1951, one of the hosts informed the audience that "her father was exiled from czarist Russia because of his liberal views." Roderick Long notes that this is true, "if by 'was exiled' you mean 'escaped,' and by 'liberal' you mean 'anarcho-communist'": Her father was the radical geographer Peter Kropotkin, one of the most prominent left-anarchist figures of the late 19th and early 20th centuries. And now the younger Kropotkin—a journalist, a translator, and the author of a Russian cookbook—was going to be interviewed about the evils of Stalin by American Mercury editor William Bradford Huie and, sitting to Huie's left, the libertarian Newsweek columnist Henry Hazlitt, author of the free-market favorite Economics in One Lesson.

The interview has its clumsy moments—Kropotkin claims that 80 percent of the Soviet population opposes Stalin, then has trouble backing up that figure when Hazlitt asks about it—but sometimes the very fact that something exists is reason enough to watch it:

Ms. Kropotkin went on to back Barry Goldwater in the 1964 presidential election.

(For past editions of the Friday A/V Club, go here. For another installment featuring Longines Chronoscope—this one starring Karl Hess and Henry Wallace—go here. Hazlitt's one article for Reason is here. Peter Kropotkin's most famous book is here.)

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What Bill Clinton Can Teach Donald Trump About Surviving Endless Scandal

The former president radically flipped the conventional wisdom about dealing with political enemies, legal issues, and impeachment.

ReasonReasonDonald Trump is going to need a bigger barrel.

If the BuzzFeed story about him telling former attorney Michael Cohen to lie to Congress and federal investigators holds up (a very big if, given past too-good-to-check stories), the president is definitely in deeper dog-doo than before. But if anyone has shown an ability to get out jams that would have crushed other politicians, it's Donald Trump.

Meanwhile, Trump's one-time pal, Bill Clinton, not only survived being the second president to be impeached but came out smelling like a rose. Bubba's popularity soared while his dark twin, Speaker of the House Newt Gingrich, was effectively destroyed by the impeachment he engineered.

With that in mind, Trump—and reporters who either weren't around in the '90s or have shitty memories—would do well to peruse this Reason story from April 2000: "Secrets of the Clinton Spectacle: A five-step program for surviving endless scandal."

How, Charles Paul Freund asked, did Bill Clinton manage to rise above "bimbo eruptions" on the campaign trail, "Travelgate," the failure of "ClintonCare," a clean sweep of Congress by Republicans in 1994, the drip-drip revelations of his affair with intern Monica Lewinsky, and more?

A common explanation from many frustrated conservative critics is that Clinton has been let off the hook by a "liberal" Washington press corps. But while one can argue with many aspects of the mainstream media coverage of the Clinton presidency, a demon "liberal press" has hardly let him off easy. Most of the credible damaging information about the Clinton years was developed by mainstream reporters. The reporter whom the Clintons are reputed to "fear" most is Jeff Gerth of The New York Times. The story that did the most damage to the administration—the Lewinsky matter—was developed by Michael Isikoff of Newsweek. The paper that actually broke that scandal, and that put the Broaddrick story on its front page, was The Washington Post. Even the most definitive account of the apparently unjustified (but self-serving) bombing of the Sudanese pharmaceuticals factory appeared in, of all places, The New Yorker, otherwise noted for its bona fide pro-Clinton slant. TV reporters likewise broke many stories damaging to Clinton, and the all-news cable services have been happy to devote their 24–7 schedules to his juicier problems....

The answer is deceptively simple: Clinton ignored traditional Washington wisdom for dealing with exploding scandal and instead used the capital's notorious scandal machine against itself. Scandal is unlikely ever to be the same. Bill Clinton's long-sought Legacy turns out to be a guide on how to rise from the dead.

Freund identifies five big strategies, many of which Donald Trump is already employing.


That last point is worth underscoring, as it's clear that Trump is following the example set by Clinton. Far more than George W. Bush or Barack Obama, the Donald is dominating the news cycle, typically via Twitter, even (or maybe especially) when the media is leading with bad stuff about him.

Presidents command so much attention that they can make news anytime they want. A scandal-savvy president can employ this power to affect the context in which negative stories are taking shape. He can create counter-stories virtually at will, including major stories that can drive negative scandal coverage below the front-page fold, at least temporarily. He can also use the news-making power of his office to reposition himself advantageously in relation to threatening scandal stories.

Bill Clinton has chosen to make news of some sort almost every day. If he is not announcing initiatives on children's car seats or teenage smoking or some similar subject that other presidents have left to their under-assistant undersecretaries, then he is announcing the sudden deployment of the military. The little daily feel-good initiatives have served him well during his ceaseless hours of scandal, since they have provided him at least some positive coverage even on many of his worst days. As we have seen, the occasional and timely assumption of the mighty role of commander-in-chief has been his ace in the hole.

The most-disturbing point in Freund's piece is that Clinton wasn't shy about using the military to change the national conversation:

Twice in 1998, Bill Clinton deployed the military force of the United States at moments when the scandal stories threatening him were reaching their most dangerous stages. The evening before Monica Lewinsky was to appear before the grand jury, Clinton struck at targets in Sudan and Afghanistan in purported revenge for the bombing of American embassies earlier that summer. In December, on the evening before the House vote on impeachment, Clinton suddenly launched an attack on Iraq, claiming the necessity of acting in advance of a fast-approaching Ramadan.

Read the whole thing. And maybe start thinking about refiling that Canadian citizenship paperwork.

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The FBI Won't Say if It Spies on Your Social Media Posts. Cue the Lawsuit!

"We shouldn't have to think about self-censoring what we say online."

Piotr Trojanowski/Dreamstime.comPiotr Trojanowski/Dreamstime.comIt's not really a secret that the FBI is in the business of monitoring social media posts. What's less clear is why, after the American Civil Liberties Union (ACLU) asked for records related to that surveillance, the bureau refused to acknowledge their existence. That's just one question a lawsuit filed yesterday by the ACLU and its Northern California affiliate seeks to answer.

Last May, the ACLU filed Freedom of Information Act (FOIA) requests with seven government agencies "seeking the release of records pertaining to the federal government's social media surveillance," according to the lawsuit. It's been nearly eight months since then, and not one of those agencies has complied. The resulting lawsuit seeks "to enforce the public's right about the Defendant federal agencies' surveillance of social media and speech."

"Little information is available to the public on the tools and methods Defendants use to conduct surveillance of social media users and speech, or any policies and guidelines that govern such surveillance," says the suit, filed in the U.S. District Court for the Northern District of California-Oakland Division. "The public interest in the release of these records is clear. Because the government's growing use of social media surveillance implicates the online speech of millions of social media users, U.S. citizens and residents of all backgrounds have an urgent need to understand the exact nature, extent, and consequences of that surveillance."

Various federal agencies do have a documented history of monitoring people's social media activity. In some cases, they haven't been particularly secretive about it.

Consider the FBI. Back in 2012, the bureau published a request for information as part of an effort to enlist contractors to help build a social media monitoring system. In 2016, Vice reported that the FBI was using a tool called SocioSpyder to monitor sites like Facebook, Twitter, and YouTube for "incriminating data." And as the Electronic Privacy Information Center (EPIC) noted last June, the FBI is believed to have utilized the contractor Dataminr "to monitor in real-time more than 500 million daily tweets."

Yet the bureau responded to the ACLU's FOIA request by saying it "could neither confirm nor deny the existence of records responsive to your request."

The ACLU is also suing the departments of Justice, State, and Homeland Security, as well as three agencies under the DHS umbrella: Customs and Border Protection, Immigration and Customs Enforcement, and Citizenship and Immigration Services.

Of particular issue to the ACLU are the government's alleged efforts to more closely monitor immigrants' social media profiles. The defendants "have ramped up the monitoring and retention of immigrants' and visa applicants social media information, including for the purpose of conducting what the Trump administration has called 'extreme vetting' or 'visa lifecycle vetting,'" the suit reads.

For instance, EPIC points out that the State Department has been asking visa applicants to disclose their social media handles. The DHS, meanwhile, said in September 2017 that it wanted to "expand the categories of records" for all immigrants "to media handles, aliases, associated identifiable information, and search results."

"There's a growing trend at the Department of Homeland Security to be snooping on the social media of immigrants and foreigners and we think it's an invasion of privacy and deters freedom of speech," Adam Schwartz, an attorney with the Electronic Frontier Foundation, told BuzzFeed News at the time.

The ACLU suit asks the court to search for and release all records related to the defendants' social media monitoring. "It's unacceptable for the government to withhold details about this domestic spying," ACLU attorneys Hugh Handeyside and Matt Cagle write in a blog post about the suit. "The public needs to know how the government is watching us—and we shouldn't have to think about self-censoring what we say online."

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Will Donald Trump Be Impeached Over a Hotel? Reason Roundup

BuzzFeed report says president personally told Michael Cohen to lie to Congress about Trump Tower Moscow project.

ANDREW KELLY/REUTERS/NewscomANDREW KELLY/REUTERS/NewscomInsert the "It's Happening" gif here, folks. Maybe. A story dropped by BuzzFeed last night about President Donald Trump's directives to Michael Cohen has the internet and airwaves ablaze with talk of imminent impeachment.

As always, such talk should come with about a hundred caveats, but caution and prudence aren't this era's strong suits.

Whatever political stakes may come, however, perhaps the most truly profound part of this story is how mundane Trump's motives reportedly were. His alleged dealings with Vladimir Putin's people and, later, alleged orders for Cohen to lie to Congress about it come down to securing the right to build a Trump skyscraper in Moscow, Buzzfeed's sources say.

For all the cries of collusion, treason, and kompromat; all the speculating about sinister political motives; all the high hysteria we've been subjected to from Democrats, cable news, and supposedly serious thinkers...well, here we are: Trump wanted Trump Tower Moscow. He had long wanted to build a hotel there, and when progress on that front finally started happening he wasn't going to give it up just because he was running for president—a bid that at that point Trump and his campaign did not actually expect him to win.

The "Moscow Project" has been public for a while, thanks to Cohen's prosecution for lying about it. (Cohen claimed that work securing Russian authorities' approval for the hotel ended in January 2016, though it continued at least through that June.) BuzzFeed's biggest new reveal is that Trump personally told Cohen that he should lie about it to Congress, according "to two federal law enforcement officials involved in an investigation of the matter."

BuzzFeed also reports that, contrary to his debate claims, Trump was directly egging on the hotel deal during part of his campaign, and that the Trump children were much more involved in the hotel project than they have let on.

To quote Reason's Scott Shackford, "despite all the crazy conspiracy theorizing, everything that's coming out about Trump is very, very Occam's Razor simplest explanation." Trump likes shiny towers with his name on them, he blurts things out, and he expects everyone around him to cover for him when these things aren't true.

Trump lawyer Rudy Giuliani's response to the new allegations: "If you believe Cohen I can get you a great deal on the Brooklyn Bridge."

The House Intelligence Committee says it will begin an investigation.



  • The Chicago police officers who helped cover up the killing of Laquan McDonald were acquitted.
  • Rep. Justin Amash calls out Trump's attorney general nominee for his stance on FISA:
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Kurt Loder Reviews Glass: New at Reason

M. Night Shyamalan ends his makeshift superhero trilogy with a dull thud.

Walt Disney PicturesWalt Disney PicturesUnusually for an M. Night Shyamalan project, the real plot twist in Glass comes not at the end of the movie but about halfway through, when you realize it won't be getting any better and is in fact getting worse by the minute.

A sequel to Shyamalan's Unbreakable has been tantalizing fans for nearly 20 years. Unfortunately, the director always had better things to do. (If only he had done them, instead of making the wretched Lady in the Water and After Earth.) Then, two years ago, at the conclusion of Split, the psycho-thriller that brought him back to the box-office bigtime, Shayamalan tacked on a tiny scene that featured Unbreakable protagonist David Dunn (Bruce Willis) making ominous mention of that earlier movie's villain, Mr. Glass, who had been played by Samuel L. Jackson, writes Kurt Loder.

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Brickbat: Drink Up

A toastSyda Productions / Dreamstime.comA revision to Canada's criminal code allows cops to demand a breath test from anyone they suspect has been driving under the influence even if they aren't behind the wheel. The cops can go into bars, restaurants, and even homes up to two hours after someone has been driving and demand a breath test, and they don't even need to have reasonable suspicion."If you start to drink after you get home, the police show up at your door, they can arrest you, detain you, take you back to the (police station) and you can be convicted because your blood alcohol concentration was over 80 milligrams (per 100 milliliters of blood) in the two hours after you drove," said defense attorney Paul Doroshenko.

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Is the White House Considering Easing Chinese Tariffs? The Stock Market Hopes So

Dow Jones skyrockets on news that Steve Mnuchin is leading behind-the-scenes effort to reduce tariffs on China.

State Department/Sipa USA/NewscomState Department/Sipa USA/NewscomTreasury Secretary Steve Mnuchin is pushing behind-the-scenes for the White House to reduce its tariffs on China, and news of the effort appears to have sent the stock market soaring on Thursday afternoon.

The Wall Street Journal reports that Mnuchin has raised "the idea of lifting some or all tariffs" in a series of meetings as senior administration officials chart a course towards a crucial March 1 deadline in the ongoing trade spat between the United States and China. Mnuchin believes that reducing or eliminating some of the tariffs imposed last year may advance trade talks with China and could convince the Chinese government to make concessions—though other top trade officials, including U.S. Trade Representative Robert Lighthizer, remain unconvinced and worry that rolling back tariffs could be a sign of weakness, according to the Journal.

Atop a 25 percent tariff on imported steel and 10 percent tariff on imported aluminum, which apply to all nations, the Trump administration has slapped a 10 percent tariff on an estimated $200 billion of goods imported annually from China. Those Chinese tariffs were set to increase to 25 percent on January 1, but Trump decided in November to postpone the hike until March 1 in the hopes of reaching a trade deal with China in the early part of this year.

Those tariffs—which are really just taxes paid by American consumers and businesses—have already had an effect on the American economy. At the end of the third quarter, dozens of major American companies said trade issues and tariffs were red flags for future earnings. Worse may be coming. Over a full year, the tariffs will reduce gross domestic product, a short-hand measure for the overall size of the economy, by about $30 billion, while also depressing wages and costing more than 94,000 jobs, according to an analysis by The Tax Foundation.

If you need more immediate evidence of the impact of Trump's tariffs, just take a look at what happened to the Dow Jones Industrial Average in the two hours since The Wall Street Journal reported the slightest rumblings of tariff skepticism in the White House. The story went live online at 2:40 in the afternoon:

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Sure, the exuberence didn't last, but that's not an insignificant rally for the Dow Jones—which, at 24,300, is still more than 600 points lower than where it was on March 1, 2018, when Trump launched the first volley of his trade war.

Lowering the tariffs will require convincing the "Tariff Man" himself that they are a bad idea, of course, but if Mnuchin is serious about making that argument, he just got more ammunition.

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Harris County, Texas, Flashpoint of Bail Reform Battles, Will Mostly Eliminate Cash Demands in Minor Cases

Lawsuits playing out for three years spotlight how poor people end up trapped in jail even before being convicted.

Get out of jailAnthony Furgison / Dreamstime.comHarris County, Texas, has essentially been ground zero in the fight to reform how cash bail works in America. Civil rights lawyers have successfully sued the county in federal court for locking up indigent arrestees and requiring them to pay cash bail, even for minor crimes and in cases when they are neither dangers to the community nor flight risks.

The county has been ordered by federal judges to reform its practices so that money is not the determining factor of whether somebody is free or detained prior to trial. But judges and county leaders—many of them Republican—have been resisting these demands, and Harris County has spent an estimated $9 million since 2016 fighting the lawsuits.

Then the blue wave came in November and pretty much all of those resistant judges were tossed from office and replaced with Democrats. Credit or blame straight-party voting for the outcome. Democrats and Republicans turned out to vote in equal percentages in Harris County, but a higher percentage of voters, 42 percent to 33 percent, took the straight party option to vote for each Democrat on the ballot rather than for a few Republicans a la carte.

The new crop of Democratic judges are supporting bail reform. Earlier in January, not long after being sworn into office, these judges dropped the county's efforts to appeal federal rulings ordering changes to the system.

This week, that same crop of new judges, working in tandem with prosecutors and the Harris County Sheriff's Department, are announcing new bail guidelines intended to eliminate the dependency on cash bail as a determinant for pre-trial release in misdemeanor cases. From The Houston Chronicle:

County Court at Law Judge Darrell Jordan, the presiding judge, estimates that 85 percent of people arrested on misdemeanors will now qualify to be released after arrest on no-cash bonds, with a few exceptions for people who must await a hearing—for up to 48 hours—for bond violations, repeat drunken driving offenses and domestic violence charges. At that point, they may also qualify for personal recognizance bonds.

"What it means is that no one will be in jail because they cannot afford to get out," Jordan said. "The only people who will be detained and have to speak to a judge are a very small subset who will be processed through the Harris County Jail and those carve outs are aligned with best practices from around the country."

To be clear here, these changes are only for misdemeanor crimes. Nobody is likely walking free without bail after being charged with armed robbery or attempted murder.

The changes, unfortunately, will come too late for Tracy Whited, who was arrested on Saturday in Harris County for misdemeanor charges from a fight with an ex-boyfriend and a subsequent attempt to leave the jail while she was being booked. Her bail was set for $3,000. She was found hanging by a sheet in her cell on Monday and died in the hospital on Wednesday. She's the fifth suicide in that jail in two years, according to the Houston Chronicle.

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Watch a Florida Cop Botch a Drug Field Test on Video, Then Arrest an Innocent Man

The same officer was fired last year after video of him allegedly planting drugs in a car during a traffic stop emerged.

Body camera footage obtained by Reason appears to show a now-fired Florida sheriff's deputy blatantly lying about the results of a roadside drug test during a traffic stop last year.

The video shows the April 17, 2018, traffic stop of Florida resident Steve Vann by former Jackson County Sheriff's deputy Zachary Wester. Vann was subsequently charged with possession of methamphetamines and paraphernalia as a result of the traffic stop, but state prosecutors later dropped those charges as part of a review of more than 250 cases that Wester was involved in since his hiring in 2016.

State prosecutors have dropped criminal charges in more than 100 cases involving Wester after body cam footage released last September showed the officer allegedly planting drugs in a car during another traffic stop. A Florida judge also vacated the sentences of eight people whose convictions were based on evidence and testimony by Wester. The Florida Department of Law Enforcement launched an investigation into Wester, and several people have filed federal lawsuits against him.

In the body cam footage obtained by Reason of Vann's arrest last year, Wester searches Vann's truck after pulling him over for a traffic violation and appears to find a small plastic baggie in the vehicle's center console.

"Honesty is going to go a long way with me," Wester tells Vann, holding up the baggie. "Have you ever seen this before?"

"No, no what is that?" Vann says. "Where'd you get that?"

"The center console," Wester says as he walks back to his cruiser to perform a roadside test of the baggie for methamphetamines.

"There ain't no way, man," a distraught Vann says. "Oh my god, you gotta be fucking kidding me."

Wester then uses a Nark II field test for methamphetamines and MDMA. According to the manufacturer, the field test "will develop an IMMEDIATE (within 2 seconds) Dark Blue color as a positive reaction after breakage and agitation of the 3rd ampoule. If the color development is an immediate Pink slowly transforming to Lavender, you DO NOT have either Methamphetamine or MDMA."

Wester shakes the field test for about 10 seconds, checking it several times, but it remains red. Looking right at the small bag of pinkish red liquid, Wester then says "blue" and returns to Vann to tell him the substance tested presumptively positive for methamphetamines. The field test occurs at roughly the 3:45 mark in the video above.


The Jackson County Sheriff's Office confirmed to Reason that it uses the Nark II field test and that a positive result for methamphetamines should turn the solution blue.

Wester presses Vann to admit that he knew the meth was in his car, but Vann, breaking into tears at several points, continues to deny knowing where it came from. He appears confused and devastated throughout the exchange.

"I'm going to have to take your vehicle, too," Wester tells Vann. "Listen buddy, I don't think you're a bad guy."

At one point, at around 11 minutes 50 seconds into the footage, Wester drops some of Vann's personal effects into the trunk of his police cruiser, at which point he picks up the field test and looks at it again. It's still clearly red.

The Tallahassee Democrat first reported last September that local prosecutors were dropping dozens of cases involving Wester after body cam footage appeared to show him planting a small baggie of meth in a woman's car during a traffic stop.

The Democrat later published accounts by several other people who claimed they were framed by Wester during traffic stops. Before joining the Jackson County Sheriff's Office, Wester was fired from his previous job at the Liberty County Sheriff's Office for for inappropriate relations with women, the newspaper reported.

In 2016, The New York Times reported that the $2 roadside field tests that Wester and countless other police officers around the country use to establish probable cause to arrest someone for drug possession are unreliable and easy to misinterpret:

There are no established error rates for the field tests, in part because their accuracy varies so widely depending on who is using them and how. Data from the Florida Department of Law Enforcement lab system show that 21 percent of evidence that the police listed as methamphetamine after identifying it was not methamphetamine, and half of those false positives were not any kind of illegal drug at all. In one notable Florida episode, Hillsborough County sheriff's deputies produced 15 false positives for methamphetamine in the first seven months of 2014. When we examined the department's records, they showed that officers, faced with somewhat ambiguous directions on the pouches, had simply misunderstood which colors indicated a positive result.

Such tests are not admissible evidence in court in most jurisdictions in the U.S. Instead, samples are sent to state forensic labs for verification.

Many of Wester's victims had prior criminal records for things like drug possession. They were, in other words, easy targets. No one would believe their word against a police officer's. If Wester hadn't been wearing a body cam, and if he hadn't been sloppy enough to film his amateur sleight-of-hand attempts and lies, all of their charges would likely stand, and he would still be patrolling the streets.


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