Free Minds & Free Markets

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A Lawsuit Could Decide the Fate of PBR and Other Working Class Beer Brands: New at Reason

RICHARD B. LEVINE/NewscomRICHARD B. LEVINE/NewscomA Wisconsin courtroom was the setting this week for a lawsuit pitting some of the biggest names in watery American beer against each other. The case pits "hipster favorite" Pabst, parent of PBR, against the much larger MillerCoors, which Pabst claims wants "to put it out of business."

Earlier this year, Pabst sued MillerCoors, alleging MillerCoors has engaged in "breach of contract, breach of anti-competition laws, fraud, and misrepresentation." The companies' currently have an agreement in which MillerCoors brews Pabst's beer brands. That agreement is about to end, and MillerCoors seems ambivalent about renewing the contract. Pabst has asked the Wisconsin court to award it $400 million in damages and to force MillerCoors to renew the contract.

Courts shouldn't force parties to renew a contract, writes Baylen Linnekin, even if failure to do so could imperil one party to the contract. But this particular contract could be beside the point. The beer market is changing, and America's megabrewers are in trouble.

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Sole and Despotic Dominion: Fiction: New at Reason

Thank you for contacting Disher technical support. My name is May and I am pleased to help you with your Disher Experience!

ShutterstockShutterstockAuthor Cory Doctorow provides a short work of fiction for the latest issue of Reason. A snippet:

Thank you for contacting Disher technical support. My name is May and I am pleased to help you with your Disher Experience!

Are you human?

That's a rather personal question!

Let me talk to a human

I'd be happy to help you make your Disher Experience the very best one possible


One moment please! Have a great day!

Thank you for contacting Disher technical support. My name is May and I am pleased to help you with your Disher Experience!

Are you human?

Yes sir. I am a live human operator. I am based in Charlestown, Nevis, at Disher's own in-house support center. How may I help you?

My dishwasher won't wash my dishes

Sir are you using Disher approved products from the Kitchen Store?


Sir I show that you have purchased a family starter set of Burberry Gentility dishes with the optional entertaining expansion pack and a cocktail party upgrade from the Disher Dubai store in June 2024. Are these the dishes you are using in your Disher Speckless?

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Rep. Eric Swalwell Thinks Gun Confiscation Will Work Out Fine Because Government Has Nukes

While Swalwell insists it was 'sarcasm' it's bad form to reply to a citizen aggrieved at openly threatening constitutional rights connected with self and civil defense with implied threat of mass murder.

What does it take to get a U.S. House member to (sarcastically! sarcastically, he insists) very publicly threaten to nuke American citizens who want to defend their constitutional rights under the Second Amendment?

Nothing more than pushing back on Twitter against that congressman, Eric Swalwell (D-Calif.)'s proposal from earlier this year to fully ban and buy back every one of what he wants to designate as "assault weapons" with the added bonus of "criminally prosecut[ing] any who choose to defy it."

Apparently feeling a bit threatened by this proposal to go after him and millions of other Americans for possessing an individually owned tool of self-defense and recreation, this was tweeted by a Joe Biggs today:

Rep. Swalwell, willing to make sure the war against any possible American citizen resistance over gun confiscation doesn't fall into the endless quagmire of so many other guerrilla wars of the past century, reminds the citizen that while the government as represented by him wants your guns, it has something far stronger it would be perfectly happy to use if you complain:

Just a little chilling, isn't it, that mafia-like "reminder that we can and will kill you" followed by "thus I'm sure we can talk it out." Swalwell followed up with a bunch of "well, he started it!" posts and insists he was being sarcastic. But that mindset, including its delusional belief that the American military would rather mass murder its own citizens than allow them to continue to enjoy Second Amendment rights as applied to an arbitrary and, as a matter of public policy, rather unimportant set of weapons, reveals why it's so difficult for America's gun owners and those who support their rights to stay calm when politicians talk about their own vision of "common sense gun control."

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Cities Keep Imposing Self-Defeating Restrictions on Electric Scooters

Portland and D.C.'s treatment of electric scooters undermines the cities' own goals.

Simone Hogan/Dreamstime.comSimone Hogan/Dreamstime.comAmerica's cities are engaging in another wave of restrictions on the budding electric scooter industry, just as limited pilot programs come to an end. This is particularly true of two cities, Washington, D.C., and Portland, Oregon, which had previously been relatively welcoming of scooters.

Since July, Portland has been running a pilot program for dockless scooters—which can be rented right off the street using a smartphone app—allowing companies Lime, Skip, and Bird to put their vehicles out on city streets. Portland capped the total number of scooters allowed at 2,500 and required each company to deploy scooters in poorer East Portland.

This pilot program comes to an end Tuesday, and despite Portlanders logging some 755,000 miles on the scooters, the city's current plan is to now shut everything down so it can comb through the data it collected on the vehicles' usage.

"We need to assess what we're finding. We need to hear more from Portlanders, all of their experiences, both positive and negative," Portland Bureau of Transportation spokesperson John Bradley told OregonLive.

This assessment is supposed to guide Portland leaders if they want to bring the scooters back.

Something similar is playing out in Washington, D.C., where after a lengthy pilot program, the city is out with new, more restrictive rules for its scooter permits in 2019.

The number of scooters each company can put out on D.C. streets has been increased from 400 to 600, but that's about the only bone thrown to the four currently permitted scooter companies operating in D.C.

Companies will only be allowed to add 100 scooters per quarter. Any expansion of a company's fleet will have to receive approval from city officials who'll be evaluating their performance along a number of metrics, including trips per day, how quickly the companies to respond to code violations, and how many of their trips are beginning or ending in "Equity Emphasis Areas," i.e. poorer parts of the city.

In addition, scooter speeds—once 15 miles per hour—will be capped at 10 miles per hours instead, even while allowing dockless, for-rent electric bikes to travel a full 20 miles per hour.

Obviously, Portland's plans to totally remove scooters from city streets is more severe, but it is striking that both cities seem obsessed with regulatory minutia.

Portland's evaluation of its pilot program will look at whether the new service helped expand "access for underserved communities" or "reduced private motor vehicle use," yet companies can serve neither goal at all if they're not on the streets. (Whether any company should be required to meet these goals in order to do business is another question altogether.)

Likewise, D.C. says it's being heavy handed in order to address concerns about "safety and equity."

Yet under the District's pilot program, folks from all around the city, including its poorer areas have, clearly taken to the vehicles. A study funded by D.C.'s Department of Transportation (DDOT)—which is responsible for regulating scooters—compared dockless services with the city's own, taxpayer-funded bike share program, which requires users to pick up and return bikes to specific docked locations.

"What we found is that the dockless program overall provides greater micro-mobility accessibility across the entire city, and also specifically in Ward 8, which is traditionally underserved," wrote Regina Clewlow, one of the study's authors, in a blog post. Again, leaving aside the question of whether a private company should be required to provide social services in order to operate, is outperforming a taxpayer-funded program in the city's poorest neighborhood not enough of an accomplishment?

As Bird pointed out in a letter to D.C. Mayor Muriel Bowser, the city's continued cap on vehicles frustrates the ability of companies to serve the very populations the city is so concerned about. A "cap on the number of e-scooters available to the people of D.C. eliminates any chance of this program being equitable," wrote David Estrada, the company's head of government relations last week, noting that "a capped number of scooters incentivizes e-scooter providers to put their vehicles only in popular, high-density areas—not in historically underserved areas."

D.C.'s regulations aren't changing for now, and despite a concerted lobbying effort from companies, Portland officials have given no indication that they're willing to allow scooters on the streets after the pilot program ends Tuesday.

That's a shame for riders in both cities. But it now seems riders were never the top priority.

The Pentagon Fails Its First Comprehensive Audit

According to Deputy Secretary Patrick Shanahan, no one expected it to pass anyway.

|||Yuri Gripas/REUTERS/NewscomYuri Gripas/REUTERS/NewscomThe Department of Defense completed its first comprehensive audit this week. Well, it almost completed it.

The year-long audit was reportedly the largest in history, with about 1,200 auditors assessing 21 Pentagon agencies' spending. The audit itself cost $413 million—about a thirtieth of the Pentagon's budget.

Only five of the 21 individual audits received a fully passing grade, while two received an OK grade. Two agencies aren't actually done yet—they're set to have their audits completed at the end of the month. The rest were given disclaimers, meaning there were inventory discrepancies and other errors. Such low passing numbers were considered a "fail." (For how the specific agencies fared, go here.) Officials believe that it could take years to solve the accounting discrepancies found. An additional $406 million have been spent so far on addressing issues found in the audit, and $153 million were spent on "financial system fixes."

"We failed the audit, but we never expected to pass it," Deputy Secretary of Defense Patrick Shanahan said of the results.

Indeed, stories of exceptionally wasteful Pentagon spending are a news staple. It recently came out, for example, that the Air Force had spent more than $300,000 on 391 specialty mugs, which kept coffee and tea hot and were easily broken. Officials later found that they could 3D-print replacement pieces for 50 cents each.

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British School Bans Expensive Coats So Poor Students Won't 'Feel Stigmatized'

Bans like these just encourage a victim mentality.

Wikimedia CommonsWikimedia CommonsA U.K. secondary school is banning a variety of designer jackets in an effort to stop "poverty-shaming."

Parents of students at Woodchurch High School, an institution in northwestern England, received a letter earlier this month from the school regarding the new policy. "Pupils will not be permitted to bring in Canadian [sic] Goose and Monclair [sic] coats after the Christmas break, the letter reads. "Some have also asked whether Pyrenex coats, which are also in a similar price range (with some also having real fur) will also be prohibited," it adds, before confirming "that these brands will also be prohibited after Christmas."

Headteacher Rebekah Phillips tells The Independent that some students had been coming to school in 700 pound (nearly $900) coats. This wasn't good for students whose parents couldn't afford such clothes. "They feel stigmatized, they feel left out, they feel inadequate," she says.

It's all part of a larger effort to prevent "poverty-shaming," Phillips tells the BBC. "We met with groups of pupils and made the decision in consultation with them," she says. "The pupils spoke to us about the pressure on families and the pressure on themselves to wear particular branded coats." According to Phillips, some parents requested the ban as well.

Many of Woodchurch High School's students—46 percent, according to CNN—are indeed poor. That's why the school provides free sanitary products and requires students use a certain type of backpack, so they don't pressure their parents to buy more expensive ones.

A YouGov survey suggests the British public largely agrees with the school's decision, with 68 percent saying they support it.

The backstory to the ban isn't clear. If this is just a case of some children feeling bad—or some adults worrying that kids will feel bad—because they can't afford the things some of their peers have, then the policy seems more likely to encourage a victim mentality than to help students feel better. Not being rich is nothing to be ashamed of; it hardly helps to tell kids that other people's clothes could "stigmatize" them.

It's possible, on the other hand, that some rich students were actively bullying other kids because of their clothes, and that the ban is an attempt to put an end to such cruelty. But in that case the school should target the behavior, not the clothes—and focus on the bullies rather than adopt a prohibition that affects everyone.

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Showtime Re-enacts Crazy New York Prison Escape: New at Reason

Case from 2015 makes for a compelling docudrama

'Escape at Dannemora''Escape at Dannemora,' ShowtimeTwo prison guards—correctional officers, or COs, as it goes in the lingo—are sitting around, waiting for their shift to end. One is asking that what the hell the world has come to when the inmates are allowed to have TV sets in their cells. The other clucks sympathetically to a complaint he's heard many times from many colleagues, but then offers some realpolitik counsel: "What's the alternative? You've got a guy in the cell all days, wondering, 'How do I kill this guy with a toothbrush?'"

Nobody plots to kill any correctional officers (husbands are not so lucky) in Escape at Dannemora, Showtime's excellent miniseries recreation of the 2015 escape from an upstate New York prison that captured the country's attention for a month.

But the principle is central to both the show and the prison experience: Inmates with little to lose sit around all day long, brooding about how to manipulate a situation that's at best lethally monotonous and, at worst, just plain lethal, to their own advantage. Television critic Glenn Garvin has more.

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Michael Bloomberg's Chances of Becoming President: Slim, None, and Fat

The latest trial balloon from the perennial White House Hamlet contains more lead than the paint of a New York public school.

Pol...Pot! ||| ReasonReasonMichael Bloomberg wakes at 5 a.m. (while Bill de Blasio is busy sawing logs at Gracie Mansion), showers, shaves, slaps some Aqua Velva on his face, points tiny finger pistols at the mirror, and says, "What America needs right now to get out of this Trump mess is another unpleasant septuagenarian businessman from New York!"

No, really. The former New York mayor and longtime business-news tycoon is once again, at the spry age of 76, aggressively floating his name in connection with a presidential run that likely won't come close to the starting line. This time not as an unrealistic independent (as in 2007 and 2016), but as a member of the party he joined all of one month ago: the Democrats.

"Thanksgiving, Christmas, and then maybe a few weeks into January—that's when you really gotta sit down, talk to your advisers, and say, 'Look, do I have a chance?'" Bloomberg mused this week to the Associated Press. "I think I know why I would want to run. I think I know what I think this country should do and what I would do. But I just don't know whether it's possible."

Let me save the man a few months: It's not possible.

I say this not because Bloomberg is terrible on things libertarians care about—like eminent domain, surveillance, nanny-state soda bans, sin taxes, vaping, the Constitution, and a general do-something ideology that perennially fails to admit that it's an ideology. No, I'm saying this because the things the left disagrees with him about are deal-breakers, and the things they like would make him unsaleable to the rest of the country.

Take stop-and-frisk. Bloomberg served out his third term as mayor at the end of 2013. The street protests in Ferguson, Missouri, happened in the summer of 2014. Since then, mostly for the good, Democrats have become a party with little patience for constitutionally dubious tough-on-crime policies that explicitly target poor and minority communities. To this day, Bloomberg erroneously credits this poverty-checkpoint policy with reducing crime.

The former mayor is also an outspoken advocate for something far more libertarian-friendly: school reform. But on the national level especially, the Democrats have rejected Barack Obama's reform-curiosity for a more retrograde universal-pre-K, pay-all-the-teachers-more, charter-schools-are-bad rigidity.

The main issue on which Bloomberg and progressives passionately agree is precisely the one no national candidate in modern times has ever been able to run on successfully: gun control. Firearms, and the right to own them, remain stubbornly popular in America, and strenuous, city-slicker opposition to them constitute political no-fly zones throughout large swaths of the country. And Democrat criminal justice reformers are beginning to draw the direct line between gun control policies like stop-and-frisk and the kind of racial profiling/condescension they abhor.

I suspect the biggest reason Bloomberg 2020 will soon be declared dead on arrival is related to this succinct Jesse Walker observation from 2016: "More than anyone else in public life today, Bloomberg embodies the idea of managerial control." There may be plenty of managerial tendencies among Democrats and the politicians they support. But in an era when consumers are voting on the way candidates make them feel, the white-hot center of left-bent passion seems to be more about the vigorous, post-Boomer Benetton uplift of Beto O'Rourke and Barack Obama rather than the crabby competence of yet another New York asshole.

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FDA Chief Scott Gottlieb Says He Has to Restrict E-Cigarettes in Order to Save Them

If the FDA does not try to reduce underage vaping, Gottlieb says in a Reason interview, congressional intervention could wreck the industry.

Eduardo Munoz / Reuters / NewscomEduardo Munoz / Reuters / NewscomFDA Commissioner Scott Gottlieb says he still believes that e-cigarettes offer "a tremendous public health opportunity" to reduce the harm caused by smoking but felt compelled to impose restrictions on them because of a surprising surge in underage vaping. Had the FDA not acted, he said in an interview with Reason today, political pressure could have led Congress to intervene, presenting "an existential threat" to the vaping industry.

"We were shocked when we saw the data," Gottlieb said, referring to results from the National Youth Tobacco Survey showing a sharp increase in e-cigarette use by high school and middle school students between 2017 and 2018. "It doesn't matter what you think or what I think. We're going to have congressional legislation that's going to foreclose and supersede anything we can do. We're at 20 percent of high school kids using vaping products, based on the data. You have another year of 50 percent growth on top of that, we'll be at levels that will be intolerable to the general public. The political consensus tilts pretty heavily in favor of restrictions on these things. I worry about the existential threat that comes with continued growth in youth use if we do believe that this is an opportunity to really shift the trajectory of smoking-related disease and get more adults off of combustible tobacco."

Gottlieb acknowledged that the new FDA rules, which ban the sale of most e-cigarette flavors in locations open to minors, will make it harder for adult smokers to get the e-cigarettes they prefer, which might make it less likely that they will switch to vaping or more likely that they will switch back to smoking. "I'm accepting the fact that steps that we take to provide additional restrictions on access to these products [by] kids are going to have an impact on adult access," he said. "We tried to strike a balance. There is no free lunch here. Anything we do to try to foreclose the rampant use by kids is going to also have some impact on adult access." That seems like an overstatement, since better enforcement of the minimum purchase age could reduce access by minors without creating significant barriers for adults.

In addition to his concern about possible congressional action, Gottlieb said he is personally worried by the increase in underage vaping and has a legal mandate as head of the FDA to reduce it. "I'm in a position where we simply have to respond to the youth use," he said.

Gottlieb has repeatedly said he worries that some teenagers who otherwise never would have tried tobacco will start smoking after being introduced to nicotine via e-cigarettes. Today he said proprietary industry survey data he has seen indicate that teenagers who view smoking with disgust do not have the same reaction to vaping. "We've been relatively successful in this country at stigmatizing traditional cigarette smoking among kids," he said. "That stigma doesn't attach to e-cigarettes."

At the same time, Gottlieb acknowledged that some teenagers who vape might otherwise be smoking, a substitution effect that seems plausible given that the surge in e-cigarette use by teenagers has coincided with a continued decline in smoking. "It's probable," he said. "It's implausible for me to say that there aren't kids out there who are using e-cigarettes instead of combustible tobacco and probably, if they never had this opportunity, would have used combustible tobacco." But he added that it's hard for the FDA to consider that as "a public health justification" when "our mandate is that no child should be using a tobacco product." That suggests the FDA's mission to reduce underage vaping may conflict with the public health goal of minimizing morbidity and mortality.

Yesterday Gottlieb said the FDA would consider additional restrictions on e-cigarettes if the upward trend in underage consumption is not reversed. But today he said he is determined to keep e-cigarettes on the market as a harm-reducing alternative for smokers. "I think there's a tremendous public health opportunity," he said. "These things do have risks associated with them...but certainly not any risks on the same level as combustible products....It wouldn't be my intent to ever impose a complete ban on e-cigarettes. I've said repeatedly that we see a public health opportunity here, and I think it would be an unfortunate day if there ever was a ban imposed on e-cigarettes. I wouldn't foreclose the possibility that Congress could contemplate more restrictive measures in a world where youth trends continue at the same rate they are right now, and I do worry about that."

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ABC Makes Patently False Claim About New Title IX Rules

The new standard does not require victims to show that they can't return to school. It doesn't even require them to leave school in the first place.

DeVosLEAH MILLIS/REUTERS/NewscomABC has badly mischaracterized Education Secretary Betsy DeVos' proposed changes to Title IX, the federal statute dealing with campus sexual misconduct.

"One of the biggest changes to the rule would be a new definition of sexual harassment," writes ABC's Anne Flaherty. "Under Obama, it was defined it as 'unwelcome conduct of a sexual nature.' The new rule would define sexual harassment as unwanted sexual conduct that is 'so severe, pervasive and objectively offensive that it denies a recipient's education program or activity.'"

So far, her description is correct. (For more on why such changes are good for students' due process and free speech rights, read this post.) But what comes next is totally false:

That definition would be significantly more difficult to prove because the victim would have to prove the misconduct prevents them from returning to school.

No. The new standard does not require victims to show that they can't return to school. Indeed, it doesn't require them to leave school in the first place. What this new standard says is that severe, pervasive, objectively offensive sexual harassment that negatively impacts a student's ability to attend class is a form of discrimination, because it denies the student's right to an education. Sexual conduct that satisfies the severe, pervasive, and objectively offensive threshold—the legal standard for workplace harassment—will be held to violate Title IX, even if the conduct did not literally cause the student to flee campus but merely makes the student's life unpleasant.

Unfortunately, ABC's mischaracterization of the standard is already being parroted by the Daily Kos. This is how fake news spreads.

If would be great if a civil-liberties-minded organization in good standing with the left could step up and explain why Title IX reform is necessary and long overdue. Unfortunately, the American Civil Liberties Union has opted to go another route.

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The Government Says Falconers Have to Give up Their Privacy and Free Speech Rights in Order to Own Birds. Now the Falconers Are Suing.

"I'm treated no differently from a common felon on parole."

Peter Stavrianoudakis and AresPacific Legal FoundationThe short video shows three California game wardens, armed and wearing bulletproof vests, demanding to search the home of Fred Seaman while he stands around, only partly dressed. He's a falconer in California, and he has been for 30 years.

The game wardens don't have a warrant, and they don't believe they need one to enter Seaman's home. Remarkably, this is happening because Seaman is attempting to follow the law. He's a legally licensed falconer in California, and part of California's regulations grants the state's Department of Fish and Wildlife the authority to conduct unannounced inspections of any facility where falcons are being cared for.

The regulations don't require that the wardens have reasonable suspicion that the birds are being mistreated or that any sort of illegal behavior is happening. And if Seaman resists or refuses to let them in, he could lose his falconry license and be forced to surrender the birds.

This is how falconers have been treated under state and federal law, and some of them have finally had enough. With the assistance of the Pacific Legal Foundation, they're suing.

"This community feels like it's been beaten up on for decades," explains Timothy Snowball, the foundation's lead attorney on the case. "They've been wanting to file some sort of challenge."

It was by happenstance that the foundation connected with falconers. One of the plaintiffs is Peter Stavrianoudakis, who is both a devoted falconer and a deputy public defender in Stanislaus County. He had been looking for a complaint to use as a model for a lawsuit he himself planned to file and came across the Pacific Legal Foundation's work. He contacted them and they agreed to take on the case pro bono.

Stavrianoudakis has been in Seaman's shoes. He tells Reason that in the 1980s he had game wardens show up unannounced for an inspection. He says they suspected he might have illegally imported a falcon from Nevada to California. He hadn't. Rather than getting a warrant, they just showed up claiming this inspection authority and handcuffing him in the process.

"In short, they've created a regulation that says the Fourth Amendment doesn't apply to a citizen engaged in the sport of falconry," Stavrianoudakis says. "I'm treated no differently from a common felon on parole." He keeps Ares in his home, which means that his wife, who is not a falconer, essentially has to give up her own privacy rights as well.

That's not the only right falconers give up. This lawsuit is against both the State of California's and the United States government's Fish and Wildlife Departments, because Washington also essentially censors falconers and imposes other unreasonable restrictions. Federal regulation makes it against the law to profit off licensed birds of prey. But the law specifically targets falconers and only birds of prey, not other exotic birds. If you have a pet toucan or ostrich, cash right in. But Stavrianoudakis is banned under federal law from using his aplomado falcon, named Ares, in "movies, commercials, or in other commercial ventures that are not related to falconry." He cannot allow Ares' image to be used in logos or to endorse any product unless it's related to falconry.

He can use Ares as part of education and conservation education, but even there the law demands that he can only be paid to the extent that it covers his expenses. He is not permitted to make any personal profit off of Ares. Stavrianoudakis says he has no interest in doing so, but he calls the expansive ban "ludicrious." He wants his falconry buddies to be able to teach classes on bird conservation and actually get paid for it.

Snowball theorizes that the purpose of the ban is to prevent exploitation of the birds, but the overbroad way it's crafted violated the First Amendment. The Pacific Legal Foundation cheekily wonders on their own site whether posting a picture of Stavrianoudakis with Ares is violating the law.

"The fact that we're asking that question is constitutionally problematic," Snowball says. "The fact that we have to ask that question means it's probably constitutionally too vague. What does it mean that something is 'falconry related'? What are 'educational purposes'? What exactly does this apply to? There are more narrowly tailored ways to bring that about than a blanket prohibition."

Their lawsuit, filed in the U.S. District Court for the Eastern District of California, argues that the unwarranted, unannounced inspections violate the Fourth Amendment and the blanket controls over how falconers may present their birds represent content-based speech restrictions forbidden by the First Amendment. The plaintiffs are requesting permanent injunctions stopping California and the United States from enforcing these rules.

Read the lawsuit for yourself here, and watch the Pacific Legal Foundation's video below. A spokesperson from the California Department of Fish and Wildlife said the agency does not comment on litigation.

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Donald Trump Appears Clueless About the Criminal Justice Reform He Says He Supports

That could be dangerous for the policy's chances of success, as has been the case on other key policy issues during the Trump era.

Andrew Harrer/CNP/AdMedia/NewscomAndrew Harrer/CNP/AdMedia/NewscomPresident Donald Trump stood before the media Wednesday afternoon and claimed to be "thrilled" to announce his support for a major rewrite of federal sentencing laws, potentially clearing the way for a bipartisan criminal justice package to make it's way through Congress.

Just don't ask him what's in the bill.

In an interview with Daily Caller reporters Saagar Enjeti and Benny Johnson, conducted the same day as that press conference, Trump had an opportunity to sell the FIRST STEP Act to a friendly audience. His argument for the bill boiled down to...the fact that some other people like it too.

"You know, a lot of people are backing it," said Trump. "Look at the people that are backing it. Even, you know, like Mike Lee, he votes against a lot of things and we respect Mike and Mike is backing it. We have a lot of people that are backing this."

Sen. Mike Lee (R–Utah), of course, has long been an outspoken proponent of federal criminal justice reform. It's not that Lee's support is insignificant, but it's worrying that Trump apparently can't think of any better reason why The Daily Caller's mostly conservative audience—a group that may be skeptical about sentencing reform, and who might be swayed by the president—should back the bill.

Here's the exchange on criminal justice (and kudos to the Caller for releasing the full transcript of their interview):

THE DAILY CALLER: Sir, right now, in 2010 we saw several pieces of major legislation passed in a lame-duck Congress. What can we expect your and the Republican agenda to be in this Congress? Is it going to be an immigration fix? What about criminal justice reform? What are the two to three things you're looking at?

POTUS: We're working on many things. Criminal justice reform we're working on very hard. We have a meeting today, do you know about that? We have a meeting today.

THE DAILY CALLER: We heard about that.

POTUS: Get these two in, alright? I think we have a chance at that. We should be able to fix health care. We should be able—

THE DAILY CALLER: Just one second, sir, on that criminal justice bill. Is that the Jared Kushner-backed bill that you want to focus on?

POTUS: The answer is I'm looking at it very closely, okay? I am. It's a good thing. You know, Texas is backing it, if you look at Mississippi and Georgia and a lot of other places, they believe in it, those governors, and they're conservative people. Rick Perry's a big fan.

You know, a lot of people are backing it. Look at the people that are backing it. Even, you know, like Mike Lee, he votes against a lot of things and we respect Mike and Mike is backing it. We have a lot of people that are backing this.

The rest of the interview is more of the same: friendly, easy questions basically giving Trump free rein to talk about whatever he wants, followed by oblivious answers or complete non sequiturs—like when Trump responded to a question about immigration policy with a long rant against special counsel Robert Mueller's investigation.

This isn't new for Trump. It seems like almost every sit-down interview or press conference is followed by a series of articles (like this one!) questioning the president's grasp of basic facts, his understanding of federal policy, and his ability to communicate in complete sentences.

Trump's lack of specific policy knowledge should not stop lawmakers from passing this bill, which is a much-needed series of reforms aimed at reducing the population of federal prisons and putting an end to nonsensical lifetime sentences for drug offenses. If Trump's role in the process is reduced to that of cheerleader, that might be for the best.

And that's a shame, because there are plenty of really good arguments for the FIRST STEP Act. It would end the onerous "stacking" of firearm penalties that landed Weldon Angelos in jail for 55 years. As Reason's C.J. Ciaramella detailed Wednesday, it would also eliminate mandatory life sentences for drug offenses under a federal "three strikes" law, and would retroactively apply sentence reductions to crack cocaine offenders. As Trump himself said at the press conference on the same day as the Daily Caller interview, the bill would give ex-offenders another shot at life outside of prison, and "we're all better off when former inmates can reenter society as law-abiding, productive citizens."

But the president's inability to campaign effectively for the bill's passage is a liability for reformers. This too is not new.

Even before taking office, it was widely known that Trump's policy views basically amounted to echoing "the words of whomever last spoke to him," as The Washington Post put it, citing Trump campaign officials, in July 2016. The last two years have done little to disprove that notion, as Trump's short attention span and fascination with cable news have left White House aides and national security advisers frustrated by the difficulty of getting him to sit still and pay attention. Perhaps the best singular example of Trump's struggle with the complexities of federal policymaking came when, in typical Trumpian stream-of-consciousness style, he said that repealing and replacing Obamacare was proving difficult because "nobody knew it could be so complicated."

So far, Trump's failure to grasp policy hasn't mattered too much. Republicans may have been able to pass some version of health care reform if there was a more hands-on approach from the White House, but that's far from a sure thing.

Criminal justice reform might be different. The Senate version of the FIRST STEP Act (a different version passed the House in May) is a bipartisan effort crafted by Judiciary Committee Chairman Chuck Grassley (R–Iowa) and Sen. Dick Durbin (D–Ill.). It's not necessarily an easy sell to the Republicans who control the Senate. Senate Majority Leader Mitch McConnell (R–Ky.) does not appear willing to block the bill, but he has reportedly dispatched hardline conservative Tom Cotton (R–Ark.) to whip up opposition to it. Cotton and Grassley have already clashed on Twitter over the proposal, and other Republicans are pushing to hold hearings on the bill before it is brought to the floor—hearings that would become forums for law enforcement and other opponents of the bill to stoke fears about letting criminals loose on the streets.

With Democrats now in control the House, the bill's return to that chamber could be equally fraught. Many progressive voices in the liberal coalition want to see greater sentencing reforms that may cause conservatives to turn against it.

Getting from Wednesday's press conference to a bill signing will require a delicate balancing act. It may also require the president to make a stronger argument for the bill than merely knowing that "we have a meeting today" and "Mike is backing it." If he can't handle a softball question about why he's supporting the bill, how will Trump deal with real opposition?

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Why Are People 'Outraged' That Private Firefighters Saved Kim and Kanye's Home?

Getting upset over private firefighters does a whole lot less good than the firefighters themselves.

MEGA/NewscomMEGA/Newscom"People are outraged" that celebrity couple Kanye and Kim Kardashian West hired a team of private firefighters to save their home in Hidden Hills, California, claims a Thursday headline from Business Insider.

The headline-writing community certainly seems outraged. "Kim Kardashian's Private Firefighters Expose America's Fault Lines," blares The Atlantic. "As California's Wildfires Raged, The Ultra-Rich Hired Private Firefighters," announces HuffPost. Vice puts it bluntly: "Rich People Pay for Private Firefighters While the Rest of Us Burn."

The Wests, who have evacuated the area, did benefit from the work of private firefighters. According to TMZ, a private crew used hoses and dug ditches to save the couple's $60 million mansion. The firefighters' efforts reportedly helped save other homes in the neighborhood as well, as a fire at the West mansion likely would have spread.

Business Insider notes that the couple probably doesn't have a team of firefighters literally on call. It's more likely that the firefighters are a service they pay for as part of their fire insurance. These sorts of policies are not cheap—CBS News reports they can cost between $2,500 and $8,000 a year—and they're often available only to people with expensive houses.

Much of the criticism aimed at such policies seems to stem from the belief that it's unfair for rich people to get extra help saving their homes. "Firefighters are consistently ranked the most beloved public servants, not just because they look good on calendars but because they treat everyone equally," historian Amy Greenberg tells The Atlantic. "Rich people don't get their own 'better' firefighters, or at least they aren't supposed to."

But the wildfires raging through California are putting a massive strain on the state's resources. Not only are 66 people dead and at least 600 more missing, but 52,000 people were forced to evacuate, with many of them going to shelters. Back in September, the state had already exhausted most of its entire annual wildfire budget, and that was before the latest fires broke out. More than 200 prison inmates have been battling the flames alongside professional crews. Clearly, California needs all the help it can get. If rich folks pay for private firefighters, that means the state can focus its resources on helping those who can't afford expensive insurance policies.

This isn't a new debate. During the 2007 California wildfire season, some people complained about the same thing. Reason's Matt Welch pointed out the absurdity of the argument in a column for the Los Angeles Times (where he worked at the time):

You would think that the cheap availability of potent fire retardant, and the creation of supplementary firefighting capability with costs borne entirely by the homeowners who choose to live in fire zones, instead of everyday taxpayers would be a cause for at least mild enthusiasm.

Bonus link: Here at Reason we've been singing the praises of private firefighters since at least 1976, when Reason Foundation founder Robert Poole wrote about the Rural Metro Fire Department's efforts in Scottsdale, Arizona.

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The ACLU Condemns DeVos's Title IX Reforms, Says These Due Process Safeguards 'Inappropriately Favor the Accused'

So much for civil liberties.

DeVosOlivier Douliery/UPI/NewscomIt's no surprise that victims' rights activists and their allies are furious about the Education Department's proposed changes to Title IX, the federal statute that deals with sex and gender discrimination on campus.

It is surprising, however, to see the American Civil Liberties Union joining in this chorus. The ACLU has long defended the rights of accused terrorists, criminals, neo-Nazis, and the Westboro Baptist Church. The group works tirelessly to protect due process, even for the least sympathetic among us.

And yet the ACLU has condemned the new Title IX rules, declaring on Twitter: "The proposed rule would make schools less safe for survivors of sexual assault and harassment, when there is already alarmingly high rates of campus sexual assaults and harassment that go unreported. It promotes an unfair process, inappropriately favoring the accused and letting schools ignore their responsibility under Title IX to respond promptly and fairly to complaints of sexual violence."

I am astonished to see the ACLU take the position that a government policy gives an accused person too many rights, especially when these rights are things the ACLU has generally supported. (In other words, they are not weird new rights invented out of thin air. These are standard protections that regrettably were not applied to campus sexual misconduct adjudication during the Obama years.)

The Title IX reforms were announced Friday morning; they greatly strengthen due process protections for students accused of sexual misconduct, and they relieve colleges of the burden of investigating suggestive speech that should be permissible on free speech grounds.

"The proposed regulation rightly rejects the incredibly overbroad, unconstitutional definition of sexual harassment mandated by [the Office for Civil Rights] in its 2013 'blueprint' for colleges," said Hans Bader, a senior attorney at the Competitive Enterprise Institute and former Office for Civil Rights lawyer, in an email to Reason.

The Foundation for Individual Rights in Education is also pleased with the proposal. Samantha Harris, a vice president at the group, says "the proposed regulations are a marked improvement over the previous guidance in a number of important ways."

Some feminist groups see matters differently. The activist organization End Rape on Campus has accused DeVos of making campuses "more dangerous" for women. Another activist group, Know Your IX, describes the new rules as "worse than we could have imagined."

Keep in mind that the new rules—while a significant improvement—are not radical. In fact, they adhere to the principles set forth by federal "rape shield" laws, which protect victims from having to discuss their past sexual relationships during adjudication hearings. And while the new rules will indeed mandate cross-examination, they do not mandate direct cross-examination: Attorneys or support persons will do the questioning. This is a detail that many activists have overlooked in their criticism: NARAL made the false claim that DeVos would allow victims to be questioned and "re-traumatized" by their attackers, and Rep. Joe Kennedy (D–Mass.) retweeted it.

I didn't expect an honest appraisal of the new rules from the likes of NARAL. But I did figure the ACLU might appreciate some of the nuances involved here: Protecting women from sexual misconduct is important, but so are liberal principles of justice, fairness, and the presumption of innocence.

The ACLU recently broke with longstanding tradition to oppose the nomination of Brett Kavanaugh to the Supreme Court—and ran ads saying that Kavanaugh's denials of sexual impropriety should be dismissed, since other accused rapists like Bill Cosby and Harvey Weinstein also denied the charges against them. Between that and this, principles of due process and the presumption of innocence seem to be falling off the organization's radar as things that should be defended, at least when the person who needs these protections lacks sympathy from intersectional progressives.

Even on this front, though, the critics of Title IX reform seem to forget that the students who face sexual misconduct adjudication on campus are—as best we can tell—disproportionately men of color and immigrants. Who will speak for them, if not civil liberties organizations?

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Are the FDA's E-Cigarette Restrictions Legal?

The new rules arguably violate the law that gave the agency authority to regulate tobacco products.

Juul LabsJuul LabsThe e-cigarette restrictions that the Food and Drug Administration announced yesterday differ from the agency's rumored plans in one way that may be legally important. In addition to allowing sales of the targeted flavors (everything but menthol, mint, and tobacco) by vape shops, tobacconists, and online vendors that have age verification, the rules described by FDA Commissioner Scott Gottlieb allow other retailers to sell them in "a section" that "adequately prevents entry of persons under the age of 18," as long as the products "are not visible or accessible to persons under the age of 18 at any time."

That language seems to be aimed at getting around a limit on the FDA's power that was included in the Family Smoking Prevention and Tobacco Control Act, the 2009 law that gave the agency the authority to regulate tobacco products. It says the FDA may not "prohibit the sale of any tobacco product in face-to-face transactions by a specific category of retail outlets." Since the FDA officially is allowing all categories of retail outlets to continue selling flavored e-cigarettes, it arguably is complying with that limit.

Then again, the option of creating a segregated section, presumably with a separate cashier (since the products cannot be visible to minors at any point), probably will not be feasible for most retailers. "What we are envisioning is a separate room or a walled-off area," Gottlieb told The New York Times. "It needs to be a complete separate structure. A curtain won't cut it." Lyle Beckwith, senior vice president for government relations at the National Association of Convenience Stores (NACS), says that sort of arrangement is "not practical." Hence the rule arguably amounts to a de facto ban on sales of flavored e-cigarettes in convenience stores and any other businesses that admit minors, which the Tobacco Control Act does not allow.

"The Tobacco Control Act is clear that the FDA can't discriminate against one type of retail outlet, and that's what they're trying to do here," Doug Kantor, a NACS lawyer, told the Times. "There is a very good chance this will end up in litigation, and lawyers are looking at that right now."

It's not clear the FDA actually wants convenience stores to create adults-only sections, which would require the same ID checks that are already required for selling e-cigarettes. If store employees cannot be trusted to verify that customers buying e-cigarettes are at least 18 (which is the implicit justication for the new restrictions), how can they be trusted to make sure that customers entering the e-cigarette section are at least 18?

As described by Gottlieb, the FDA plan does not directly regulate merchants, telling them which products they may sell under what circumstances. Nor does it directly regulate e-cigarette manufacturers, telling them which products they may sell to which retailers. The FDA instead plans to make the flavored e-cigarettes themselves illegal, but only in certain contexts.

Gottlieb said the FDA will do that by selectively revisiting its 2017 decision to change the deadline for seeking regulatory approval of e-cigarettes from 2018 to 2022. "I'm directing the FDA's Center for Tobacco Products (CTP) to revisit this compliance policy as it applies to deemed ENDS products that are flavored, including all flavors other than tobacco, mint and menthol," Gottlieb said yesterday. "The changes I seek would protect kids by having all flavored ENDS [electronic nicotine delivery system] products (other than tobacco, mint and menthol flavors or non-flavored products) sold in age-restricted, in-person locations and, if sold online, under heightened practices for age verification."

Since the original deadline for submitting e-cigarette applications to the FDA has already passed, "revisit[ing] this compliance policy" for flavored e-cigarettes sold in places that minors can enter would make those products illegal in that context. But the very same products would remain legal when sold by age-restricted stores or websites. It's a pretty weird, roundabout way to accomplish what the FDA wants, but it has the advantage of avoiding the time-consuming process of formally issuing a new rule.


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