Free Minds & Free Markets

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Solar Eclipse: GOP Deniers and Democratic Alarmists [New at Reason]

You don't have to ignore the eclipse or flip out over it. There's a third way, a better way.

How will Republicans and Democrats, conservatives and liberals, react to tomorrow's solar eclipse?

Probably with the same mixture of denial and panic that they bring to virtually every issue, from regulations to crime to climate change.

Fortunately, there is a third way, one grounded in rational debate, respect for the limits and power of science, and sound policy.

Take a look:

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Jerry Lewis, RIP: An Innovative Performer and a Cautionary Tale

Remembering a great comic genius who was also responsible for The Day the Clown Cried, widely rumored to be the worst movie ever.

Terry Colon, Suck.comTerry Colon, Suck.comThey must have been tough—these past 30, 40 or even 50 years—for comedy legend Jerry Lewis, who has died at the age of 91.

Once an immensely popular and respected peformer, philanthropist, and technological innovator (he invented a system that provided immediate on-set rushes for directors back in the day), Lewis lived the second half of his life as a has-been, a punch line, an eyeroll.

He raised $2.5 billion over the years via his annual Labor Day telethons for the Muscular Dystrophy Association, but even there he didn't really get respect per se. The telethon was widely parodied and his pet name for the children he helped—"Jerry's Kids"—became the name of a Boston punk band in the early 1980s. His one great artistic triumph since his '50s and early '60s heyday was his seemingly autobiographical role as Jerry Langford, the arrogant comedian/talk-show host in Martin Scorsese's The King of Comedy who gets kidnapped by Robert DeNiro and Sandra Bernhard. Even then, people winked that Lewis wasn't in on the joke, especially after his own disastrous stab at hosting a late-night talk show in 1984. It lasted all of five episodes. That the French thought him a genius (which he was, at his best, at least) only made him less respectable in his home country, it seemed.

More recently, Lewis was in the news only for rabid outbursts, such as his 2010 declaration that he would "smack" Lindsay Lohan "in the mouth" given the opportunity: "I would smack her in the mouth and be arrested for abusing a woman!..."I would say, 'You deserve this and nothing else' ... WHACK! And then, if she's not satisfied, I'd put her over my knee and spank her and then put her in rehab and that's it."

In 2015, during an interview with the Catholic cable news channel EWTN, he averred that "Refugees should stay where the hell they are!"

Hey, nobody has worked harder for the human condition than I have, but they're not part of the human condition....If 11 guys in that group of 10,000 are ISIS, how can I take the chance? I don't want to lose another Frenchman or another Englishman. That bothers me.

His swan song in this vein came last December, when The Hollywood Reporter interviewed him as part of an upbeat, fluff series on nonagenarians who were still working in showbiz. "Nine of the interviews went great," explained Andy Lewis. "One was a trainwreck." The conductor of the trainwreck was Lewis, of course, and his performance must be witnessed to be fully appreciated (watch video here).

The saddest thing about Lewis' second half is that it's at total odds with an incredible first half, which saw him rocket to fame as part of a team with Dean Martin and then flourish for a decade or so as a solo act too. Most-remembered now for slapstick and extremely broad comedy (often involving outdated impressions of Japanese and other ethnic minorities), Lewis was working at a level rarely approached by philosophers, much less comedians. In 1999, Brian Doherty and I wrote an appreciation for Lewis at the late website that reads in part:

An early dadaist in the straight entertainment world, the pre-Dino Lewis employed a self-designed advertising postcard featuring such phrases as "Platter pantopatter!" and "Naive Frank Sinatra imaginational imagery," like a man playing surrealist word games with himself and losing.

His films regularly broke the fourth wall, with the "real"Jerry entering the action and insisting that he was only acting (often badly), even when pitching cancer sticks (during his disastrous early-'60s ABC variety show, his cigarette pitch involved holding up a pack of L&M smokes and shrugging, "Here it is. You wanna smoke it? That's your business"). When ersatz tough guys like Joe Pesci and James Caan brag of mob connections, they are not impersonating Sinatra so much as ripping off Cinderfella, who helped usher in the age of Mob Chic every bit as much as Ol' Blue Eyes (Lewis performed asimilar trick for Jewish consciousness as well).

Indeed, Jerry has always puffed up with pride regarding his connections to La Cosa Nostra, bragging that goodfellas and goombahs galore give generously to the Muscular Dystrophy Association. Need we point out that through his yearly self-immolation for the MDA, Jerry is the Australopithecus africanus from which all glory-hound,"altruistic" stars ultimately trace their ancestry?

And yet Lewis was rarely cited by younger comedians as an inspiration, even when they were clearly following in his footsteps. Why? Doherty and I suggested that Jerry Lewis had

committed three Cardinal Sins of Comedy. First, he was actually original and daring, creative and influential, in a field that hates true genius even as it relentlessly picks its pockets. Second, he was embraced by the French—no less a has-been than Jean-Luc Godard called Jerry "the only American director who has made progressive films." Third, and most important, Jerry Lewis has lived long enough and openly enough to show what happens to clowns with pretensions of being more than Señor Wences–level yukmeisters—a category that includes virtually every comic over the age of 35. With a flat seltzer canister in one hand and a curdled custard-cream pie in the other, they stare at Jerry prancing his way through Broadway revivals of Damn Yankees, dying a thousand deaths every Labor Day weekend, and unironically declaiming his genius to Larry King—and they see their futures mapped out in excruciatingly painful relief: Clowns in the concentration camp that is show biz, denied the chance to go out with exquisite, even heroic, comic timing.

That last point, of course, is a reference to Lewis' unfinished Holocaust project, The Day the Clown Cried. Begun in the late '60s and early '70s as the ultimate vanity project (Lewis starred and directed), The Day the Clown Cried followed a crying-on-the-inside clown who led children into gas chambers for the Nazis. "It's either better than Citizen Kane, or the worst piece of shit anyone ever loaded on the projector," Lewis himself told Entertainment Weekly, and the fact that it was never widely aired gives you a sense of what the auteur thought.

But even in this sort of career overreach—which ultimately gave rise to Robin Williams' awful Jakob the Liar and Roberto Benigni's powerful Life Is Beautiful—Lewis was a trailblazer. Last year, the BBC released a documentary by comedian David Schneider about Lewis' most-notorious (and unseen) film that has been made even more poignant by his death. Watch below:

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Dick Gregory Took Us All on a Strange and Powerful Trip

Comedian, civil-rights activist, food guru, and conspiracy theorist made America a better, more-thoughtful place.

Djembayz, Wikimedia, Creative CommonsDjembayz, Wikimedia, Creative CommonsThe comedian and activist Dick Gregory has died at the age of 84. Talk about a career that's virtually impossible to categorize. From avant-garde joke teller to civil-rights figure to diet guru to conspiracy mongerer, he lived a full life that in many ways mirrors all the twists and turns of American life over the past 50 or 60 years. He was relentlessly pessimistic about the state of the country even as he inspired his audience to work for change. I found him interesting because he was always out there on the horizon, lighting a path—albeit often one not particularly grounded in facts—that many of us would be following down soon after.

Born in St. Louis in 1932, Gregory ran track for Southern Illinois University in Carbondale on a scholarship, got drafted, and eventually ended up in Chicago, where he became one of the hottest entertainers of the early 1960s. Hugh Hefner of Playboy, which was still headquartered in the Windy City, was a huge fan and helped to massively increase Gregory's audience. Like Lenny Bruce and other cutting-edge comics of the time, Gregory played with social conventions in a way that was both thrilling and nervous-making. "Segregation is not all bad," went a characteristic one-liner. "Have you ever heard of a collision where the people in the back of the bus got hurt?" He was a regular presence at civil rights events during the '60s, ran for president, authored a popular natural-foods cookbook in 1974, Dick Gregory's Natural Diet for Folks Who Eat: Cookin' with Mother Nature and helped popularize the idea of healthy fasting. "When I look at the obituaries," he once quipped, "I don't see no one but all you eaters."

He was a fixture on the college tour circuit by the 1980s, when I saw him perform at Rutgers, and his monologues were shot through with frankly insane conspiracy theories (I vaguely recall him claiming that the victims of the Atlanta child murders had been mutilated in a way that suggested a government cover-up). An immediate critic of the Warren Report on the JFK assassination, he dismissed official accounts of 9/11 as well, even declaring a liquid fast until the "true story" was made available. Unsurprisingly, he taped a long appearance with Alex Jones about 9/11.

In 1964 he published a memoir, co-authored by famed sportswriter and novelist Robert Lipsyte (Reason interview here), controversially titled Nigger. Gregory later said that he wished he'd chosen a different title, but he dedicated the volume to his mother with the note,

Dear Momma—

Wherever your are, if you ever hear the word "nigger" again, remember they are advertising my book.

The opening chapter of Nigger, in which Gregory chronicles a Christmas when his absent father ("a real Capone with the whores and the bitches") comes home and beats his wife, son, and mistress, is one of the most painful accounts of black rage that America has sadly produced. It stands with passages from Frederick Douglass, Richard Wright, and James Baldwin in its anger, empathy, and pain. For anyone interested in the black family and the way in which mother-son dynamics get forged in a culture of absentee fathers, Gregory's autobiography is invaluable. The book's documentation of segregation and its effects on American culture should be required reading for those of us who didn't live through that period or have forgotten its reality. His turn to conspiracist thinking allows insight into how minorities who have suffered systematically at the hands of a dominant culture search for meaning and understanding in a hostile world. Dave Chapelle's recent Netflix specials explicitly discuss this tendency among blacks, and it's a predilection that extends to other groups of people who feel marginalized. In Donald Trump's America, understanding the complaints (without necessarily endorsing them) of people who feel pushed to the fringe of society is more important than ever.

In 2010, I covered the "One Nation Rally for Jobs, Justice, and Education" that had been organized by Ed Schultz, then at MSNBC. The various luminaries on the main stage included Jesse Jackson, Charles Rangel, Al Sharpton, and Dick Gregory, who said that the United States was not in a better place than in 1968. His comments appear at 50 seconds and at the 4:25 mark.

Farewell, Dick Gregory. You made your country a more thoughtful place and a better one, even if you think we were going downhill your entire life.

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Tribalism and Economic Nationalism Are Cut from the Same Cloth: New at Reason

While one need not embrace racism or tribalism to be an economic nationalist, an affinity exists between the two dispositions.

Pacific Press/Sipa USA/NewscomPacific Press/Sipa USA/Newscom

Antiglobalism and anticosmopolitanism might flow purely from economic ignorance, but it is hard to believe that's all it is for many people, argues Sheldon Richman. Too often these attitudes suggest what Bryan Caplan calls "anti-foreign bias" combined with "antimarket bias."

While one need not embrace racism or tribalism to be an economic nationalist, an affinity exists between the two dispositions: "I can't trust those people? Why would I want to trade with them?"

Moreover, Richman argues, the distrust of foreigners and markets could readily carry over to subgroups in the domestic population that seem foreign—that is, groups which don't quite seem to embrace the "nation's culture" with sufficient enthusiasm.

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Trump vs. The Business Community: New at Reason

Obama was not the friend CEOs think the president of the U.S. should be. But in Trump, they're finding out what it's like to have a real enemy.

Chris Kleponis/CNP/AdMedi/SIPA/NewscomChris Kleponis/CNP/AdMedi/SIPA/NewscomMost business executives fumed and groused for the eight years Barack Obama was in the White House. He was a former community organizer who had never met a payroll, and those in the corporate boardrooms thought he was no friend of free enterprise.

Now, instead of a liberal lawyer in the White House, CEOs have one of their own. And they're finding it's not everything they hoped. At this point, President Trump's recurring message is that any executive who doesn't do as Trump wishes can expect retribution from the most powerful man on earth.

Obama was not the friend CEOs think the president of the United States should be, writes Steve Chapman. But in Trump, they're finding out what it's like to have a real enemy.

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How Safe Is the Food at Your Ballpark? New at Reason

We’re talking about germs, not carbs.

HandwashingRobert Byron / DreamstimeFood policy expert Baylen Linnekin examines a new study by Sports Illustrated analyzing and ranking public safety habits in food handling at your favorite baseball stadium. Maybe watch what you eat in Tampa:

Among its conclusions, the report found "almost a third of the league's stadiums had over 100 total violations, including both Los Angeles clubs. One Chicago stadium failed its routine inspection for the second summer in a row. Eighteen ballparks had critical violations in at least a quarter of their concession stands."

Some of the violations reported are objectively gross: "Camden Yards had evidence of rodent infestation at eight different food entities and Yankee Stadium had 14 stands overrun with filth flies."

The SI report updates the first such study, published by ESPN in 2009.

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Augustana U, Former Student Agree to Title IX Lawsuit Dismissal: New at Reason

Sam Howzit/flickrSam Howzit/flickrAnother questionable college sexual assault investigation winds up in court.

Lindsay Marchello writes:

Augustana University and a former student expelled in the wake of a Title IX sexual assault investigation in 2015 have agreed to a dismissal of the student's lawsuit against the university.

Koh Tsuruta, of Lake Mills, Iowa, and Augustana agreed in a motion made in federal district court earlier this month, The College Fix reported. Neither party nor their lawyers have discussed the reasons for the agreement or whether or not there were settlement terms.

"It was resolved to the satisfaction of the parties," Vince Roche, the lawyer for the private school in South Dakota, said in Sioux Falls (S.D.) Argus Leader article. "That is all I can say."

The dismissal also leaves unanswered a trail of questions about the alleged assault, the handling of the Title IX investigation and Tsuruta's expulsion. The case points up once again the flaws in the Title IX process, the low standard of proof needed to find the accused guilty, the due process violations, and the lack of preparedness for the complexities of sexual assault cases on the part of universities.

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Steve Bannon’s Once and Future Website Warns That Trump Could End up Like Schwarzenegger (UPDATED)

While Arnold dings Donald on Charlottesville, Breitbart readies for “WAR.”

As the Twitter kids say, #ItBegins. First came news that controversial nationalist Steve Bannon was finally being shown the White House door. Next came widespread follow-up musing on how dangerous Bannon might become to President Donald Trump from the outside (including juicy quotes like, "If he leaves, it's the French Revolution"). Then came this ominous tweet from Joel B. Pollak, senior editor at large at the organization Bannon once headed and may soon return to, Breitbart News:

Arriveth the first salvo:

It begins. ||| Breitbart NewsBreitbart News

In the article, Pollak arguest that Bannon's exit "may turn out to be the beginning of the end for the Trump administration, the moment Donald Trump became Arnold Schwarzenegger." More:

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Bannon Is Out, Britain Gets Its Brexit Act In Order, and An Oregon Lube Company Switches to Human Testing: P.M. Links

  • Steve Bannon & Reince PriebusJeff Malet Photography/NewscomSteve Bannon, Trump's controversial chief strategist and former Breitbart head, has been forced out of the White House. Mainstream Republicans have expressed relief at his departure. Breitbart commenters have not.
  • Britain slowly cobbles together a plan for what a post-Brexit world might look like.
  • Eugene, Oregon-based sexual lubricant maker Good Clean Love is replacing animal testing with human testing.
  • Police say the recent vehicle attacks in Barcelona, Spain that killed at least 14 people may have been part of a wider plot.
  • Noam Chomsky calls Anitfa "a major gift to the right."
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No War This Week... with North Korea

Elsewhere, the wars go on.

Thomas Hawk/flickrThomas Hawk/flickrLast week's boogeyman, North Korea, didn't get much attention this week, as neo-Nazi marchers and Confederate statues captured the news cycle. But Washington and Pyongyang are taking slow but hopefully steady steps toward a diplomatic resolution.

President Trump's "fire and fury" comment came and went, making waves in domestic and foreign media but ultimately not changing much about the reality on the ground. As the North Korean regime gradually increases its nuclear capabilities, it is still far from an existential threat. Trump's off-the-cuff threat was, at its most basic level, a reiteration of the mutually assured destruction policy, albeit without the mutuality.

Kim Jong-un responded to Trump last week by announcing his regime was contemplating a strike on Guam. The governor of Guam, Eddie Calvo, dismissed the threat, and residents of the territory seemed to be staying calm. This week North Korea backed down, saying it was no longer considering an attack on Guam but would strike if the "Yankees persist." Trump praised Kim for chainging course, tweeting that it was a "very wise and well-informed decision."

Secretary of State Rex Tillerson reiterated this week that the door to negotiations remains open but that it is up to Kim to act. An achievable short-term goal would be the resumption of the six-party talks between North Korea, South Korea, China, Japan, Russia, and the U.S, which began in 2003 but ceased in 2009 after North Korea launched a launched a satellite and was slapped by increased sanctions.

Yesterday, Tillerson and Defense Secretary James Mattis welcomed their counterparts from Japan to Washington for a security summit, where Mattis re-iterated the American, and Japanese, promise of an "effective and overwhelming response" to any hostilities from North Korea. Tillerson, Mattis, and their Japanese counterparts also said they would urge China to take "specific measures to make North Korea change its behavior." Tillerson warned of a bleak isolation if North Korea did not reengage the international community.

In short, the U.S. and North Korea remain as far from war, or as close to war, as at any time in the last decade. Diplomatic efforts could still bear fruit.

The ISIS and Afghan wars, on the other hand, continue apace. Two U.S. soldiers were killed during combat operations this week in Iraq, where American troops withdrew in 2011 before returning a few years later to battle the Islamic State. Iraq, meanwhile, admitted that its soldiers "abused" civilians and tortured ISIS militants during the campaign to re-take Mosul from ISIS. And Trump casually commented last friday that he might start a war with Venezuela too. That has only emboldened the regime of Nicolas Maduro, providing him with a useful scapegoat to invoke when demonizing the democratic opposition.

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Whatever Happened to Elian Gonzalez? New at Reason

CNN looks back at Cuban conflict and catches up.

'Elian''Elian,' CNNTelevision critic Glenn Garvin, who also happened to be responsible for Fidel Castro's obituary for the Miami Herald, takes a look at a CNN documentary about the custody fight over one famous Cuban boy by the name of Elian Gonzalez:

Elian offers, in painful detail, the whole saga of 5-year-old Elian's 1999 voyage from Cuba to Miami on a boat that broke up and sank somewhere in the Florida Straits. His mother managed to get Elian into an inner tube before slipping beneath the waves with 10 others. The inner tube drifted to Miami, where Elian became the center of an epic tug of war with Havana that ended with federal agents kicking in the door of the home where he was staying, and snatching him at gunpoint so he could be shipped back to Havana.

The Elian story triggered much journalism that ranged from uncomprehending to obscene. Be my guest at choosing which label Eleanor Clift, then of Newsweek, should get for cheerleading the Clinton administration's decision to send Elian back to Cuba, where "he doesn't have to worry about going to school and being shot at, where drugs are not a big problem, where he has access to free medical care and where the literacy rate I believe is higher than this country's." (And no, she didn't send her own kids there.)

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Seattle Bans Landlords from Running Criminal Background Checks

A textbook case of good intentions gone awry

Seattle, Mount Rainier, Washingtonjuliwatson/pixabayGood intentions often lead to bad policy. Consider a new Seattle law that bars landlords from screening prospective tenants for any criminal history.

Passed Monday, the Fair Chance Housing ordinance prohibits landlords from excluding prospective tenants because of their criminal history, from requiring or conducting criminal background checks of those prospective tenants, or from charging them higher rents and security deposits.

"You've paid your debt to society if you've served your time," wrote the bill's sponsor, Councilmember Lisa Herbold, in an August 11 blog post. "Blocking formerly incarcerated people from accessing stable housing is an extrajudicial punishment not consistent with the rule of law."

It's true that our current criminal justice system unnecessarily tars citizens with arrest records and criminal histories, and that those criminal histories make it more difficult to find jobs and housing. But attempting to mitigate the effects of a broken criminal justice system by foisting extra costs onto landlords—who have quite understandable reasons to wants to know about tenants' criminal histories—is not the answer.

"I think landlords will still want to know if someone has been convicted of arson or drug manufacturing," said Sean Martin, external affairs director of the Rental Housing Association of Washington, in a recent debate on the law. Yet under this ordinance a landlord can take virtually no criminal offense into account when choosing whether to rent to someone, no matter how serious or how recent the violation is. The only exception is for registered sex offenders.

As Martin points out, this will make the business of renting out apartment units more risky, and landlords will respond to that risk by toughening the screening requirements they are still allowed to use.

"They are going to raise the other criteria that you can have in place, credit scores and things like that," Martin said on the local radio station KIRO. He also noted that some landlords are planning to sell their properties instead, because "they don't want to be out there with the risk involved."

Martin agreed that there "is a problem of mass incarceration." But he added, "We don't feel it should be landlords' obligation to solve a societal problem."

Ironically for a law that seeks to mitigate the harms of a punitive criminal justice system, Seattle's new ordinance calls for a mix invasive enforcement and heavy punishments.

The Seattle Office of Civil Rights is empowered to investigate any claims of "adverse action" by landlords, which include not just denying tenancy or charging higher security deposits, but also more minor offences like refusing to add a current occupant to a lease. A landlord could then be required to pay damages, provide rent credits, or mitigate their discriminatory actions through targeted advertising to affected communities.

Any participation in this "conciliation" process also mandates landlords attend anti-bias training courses. Should a landlord not opt for re-education, they can be fined $11,000 for a first offense, $27,500 for two within a five-year period, and $55,000 for more than two violations within seven years.

Seattle has already hit landlords with a raft of regulations on how they can use their property, including caps on move-in fees, strict limits on no-cause evictions for month-to-month leases, and requirements to accept tenants on a first-come, first-serve basis. Despite (or perhaps because of) all this, Seattle has one of the priciest rental markets in the country and a worsening homelessness problem.

Making the rental business more risky, and therefore more expensive, will only add to the problem.

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The Google Memo's 50 Shades of Grey: New at Reason

And all sides are talking past each other

James Damore, the author of the Google memo, has become a hero for the right, because as conservatives see it he spoke truth to corporate power when he said GoogleMJMonty via Foter.comthat sexual differences would doom the company's diversity efforts to close the gender gap. He has become a villain for the left because as liberals see it he is downplaying the role sexism plays in the gender gap.

Both sides are half right and half wrong, notes Reason Foundation Senior Analyst Shikha Dalmia.

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A 'Broader' Understanding of the First Amendment That Excludes Right-Wing Racists

An ACLU critic argues that the group must forsake freedom of speech in order to save it.

Michael Nigro/Sipa USA/NewscomMichael Nigro/Sipa USA/NewscomIn the wake of last weekend's violence in Charlottesville, the American Civil Liberties Union is facing a backlash from people dismayed that an organization dedicated to defending freedom of speech thinks that mission includes defending the right of white supremacists to hold a rally in a public park. Some of the ACLU's critics mistakenly claim that "hate speech" is not protected by the First Amendment. K-Sue Park, a critical race studies fellow at UCLA, takes a more nuanced (or maybe just more confusing) position, arguing that the ACLU's reading of the First Amendment is too "narrow," by which she means it is too broad.

Writing in The New York Times, Park argues that the ACLU gives short shrift to barriers that prevent people of color from participating in democratic debate even if they theoretically have the right to do so. "The hope is that by successfully defending hate groups, [the ACLU's] legal victories will fortify free-speech rights across the board," writes Park, who worked for the organization as a law student. "While admirable in theory, this approach implies that the country is on a level playing field, that at some point it overcame its history of racial discrimination to achieve a real democracy, the cornerstone of which is freedom of expression."

Not so, says Park, since "the power of speech remains proportional to wealth," while "police intimidation of African-Americans and Latinos" persists. Because of "structural discrimination and violence," she says, "the legal gains on which the A.C.L.U. rests its colorblind logic have never secured real freedom or even safety for all." Instead of defending the First Amendment rights of racists and corporations, Park argues, the ACLU should "imagine a holistic picture of how speech rights are under attack right now" and "research how new threats to speech are connected to one another and to right-wing power."

One way speech rights are under attack right now (as always) is the argument that they should not apply to disfavored speakers, who from Park's perspective include right-wing racists and people organized as corporations. By asking the ACLU to think about freedom of speech "in a broader context," she is actually asking the ACLU to abandon the principle altogether. The whole point of the principle is that it applies regardless of who you are or what you are saying. If the ACLU gave up its "colorblind logic" and started using racial and ideological filters to pick First Amendment cases, it would no longer be defending freedom of speech; it would be defending the interests of particular social and political groups.

Freedom of speech does not require the "level playing field" of Park's dreams. It is obviously true that wealth helps people get their messages across. So do fame, good looks, and verbal felicity. But those advantages do not render freedom of speech a nullity, any more than applying the Fourth Amendment to mansions as well as shacks or guaranteeing due process to rich as well as poor defendants makes those protections meaningless. To the contrary, legally guaranteed rights matter most to people without the social and political connections that might provide protection from official harassment.

The right to speak your mind without fear of punishment may not translate into the "real freedom" or "safety for all" that Park wants, but it is still instrinsically and instrumentally valuable, and the strength of that right depends on its consistent application. That is why the ACLU's First Amendment victories do in fact "fortify free-speech rights across the board."

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Goodbye and Good Riddance to Operation Choke Point

The Department of Justice says it's shutting down the dragnet program that targeted porn makers, payday lenders, gun shops, and other small businesses.

Michael Weber imageBROKER/NewscomMichael Weber imageBROKER/NewscomA financial dragnet that ensnared porn stars, gun dealers, payday lenders, and other politically disfavored small businesses has been shut down.

Operation Choke Point launched in 2012 as a joint effort between the Department of Justice (DOJ) and the Federal Deposit Insurance Corporation. (The Consumer Financial Protection Bureau would later get involved too.) It was supposed to be a crackdown on online payday lenders making loans into states where high-interest lending is illegal. It quickly morphed into a questionably constitutional attack on a wide range of entrepreneurs who found their assets frozen or their bank accounts closed because they were considered "high-risk" for fraud.

In a letter to Rep. Robert Goodlatte (R-Va.), chairman of the House Judiciary Committee, Assistant Attorney General Stephen Boyd called Operation Choke Point "a misguided initiative" and confirmed that DOJ was closing those investigations, Politico reported late Thursday night.

"Law abiding businesses should not be targeted simply for operating in an industry that a particular administration might disfavor," Boyd wrote. "All of the Department's bank investigations conducted as part of Operation Chokepoint are now over, the initiative is no longer in effect, and it will not be undertaken again."

If anything, Boyd is understating the degree to which Operation Choke Point was unlawful and just plain creepy.

The repudiation of Operation Choke Point is a welcome development, says Walter Olson, a senior fellow at the libertarian Cato Institute.

"It should serve as a warning that the government doesn't get to flag for banks—or businesses generally—which legal-but-suspect domestic customers it would like them to ostracize," Olson told Reason on Friday. "Those in power must refrain from signaling that they'd be pleased if certain categories of otherwise legal customer get cut off from their access to economic life."

Operation Choke Point began as an extension of the Obama administration's Financial Fraud Task Force, but the dragnet investigation was never given proper statutory authority by either the administration or Congress. In fact, details about Operation Choke Point were deliberately withheld from Congress at first, a fact The Wall Street Journal uncovered in 2013.

By labeling certain industries as being at a high risk for fraud, the feds were able to increase oversight requirements for some accounts to such a high level that it became unprofitable for banks to work with certain clients, explained Iain Murray, the Competitive Enterprise Institute's vice president of strategy, in a 2014 post at National Review Online.

As Murray pointed out, the Obama administration's own guidance document for the program included a list of industries targeted with greater scrutiny, including payday loans, credit repair services, fireworks, firearms, ammunition, "As Seen on TV" products, gambling, home-based charities, pornography, online pharmaceuticals, and sweepstakes. Targets of Operation Choke Point—such as porn star Teagan Presley, who was profiled by Vice News in 2014—often didn't have any idea why their bank accounts were being frozen or closed.

"The very premise is clearly chilling—the DOJ is coercing private businesses in an attempt to centrally engineer the American marketplace based on it's own politically biased moral judgment," wrote Reason's Elizabeth Nolan Brown in 2014.

Republicans have criticized Operation Choke Point for years. An ongoing congressional effort to reform the Consumer Financial Protection Bureau included a provision that would have reined in the operation.

There's no compelling reason for the government to stop individuals from engaging in the free exchange of goods and services based on nothing more concrete than the suspicion that some of those exchanges could be tainted by fraud. Operation Choke Point was a wide-ranging, illegal investigation that chose its targets for reasons grounded in little more than than officials' own sense of morality, and it's closure is a clear win for liberty.

Now, if only we could get DOJ to apply such level-headed, clear-eyed analysis to civil asset forfeiture.


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