According to coverage at places like NPR and CNN, an innovative campaign in Howard County, Maryland “provides a road map for other communities to reduce consumption of sugary drinks.” Not so fast, I argue in my new Washington Examiner piece: the suburban county in question is not remotely typical of America as a whole, the Howard County Unsweetened campaign blurred public and private boundaries in a dubious way, and the whole enterprise generated a deserved political pushback. While the plan, promoted by the local Horizon Foundation, might not have been all bad, “it sowed divisiveness, put government resources to improper purpose, and rested on a premise of frank paternalism. When it arrives in your community, you might want to respond as you might to a second pitcher of cola — by pushing it away with a polite, ‘no thanks.’” [cross-posted from Overlawyered]
- Governor should keep the redistricting issue in play: “Hogan has backing — from the general public, from all those sick of gerrymandering and interested in responsible government and from a long-term national trend.” [Capital Gazette] “U.S. judge: Miller, Busch must testify, turn over documents in redistricting case” [Washington Post]
- Also on the redistricting topic, I was a guest on the Kojo Nnamdi show on the topic during session, with former Del. Aisha Braveboy and Maryland Republican chair Dirk Haire [listen]
- No thanks, let’s keep the farebox recovery rule, in which Maryland shows itself more fiscally prudent than many states with mass transit systems [Brian O’Malley, Greater Greater Washington]
- Two liability-expanding decisions from the Maryland Court of Appeals, May v. Air & Liquid Systems Corp. (duty to warn of asbestos in other companies’ products) and Spangler v. McQuitty (wrongful death action can be filed notwithstanding earlier assertion of personal injury action) made it into American Tort Reform Association’s Judicial Hellholes report last year;
- The Slants, band whose name is the subject of a trademark case before the U.S. Supreme Court, play Frederick [Ronald K. L. Collins, Concurring Opinions]
- “Maryland Decriminalizes Unlicensed Barbering; Jacks Up Fines for Unlicensed Barbering” [Eric Boehm/Reason]
The campus speech wars have now arrived at Hood College in my hometown of Frederick. (I’ve written about these often as to other campuses.) The furor over a large hall display by the college Republican club, in a space given over for rotating use among student clubs, is covered by Katherine Heerbrandt in an early report here at Frederick Extra and by Nancy Lavin at the Frederick News-Post. Among the most controversial elements are a quote from pundit Ben Shapiro claiming that “Transgender people are unfortunately suffering from a mental illness that is deeply harmful,” and posters terming abortion “genocide.”
This episode has played out so far along a familiar script, with conservative students saying the most abrasive arguments seen in the display were meant to stir discussion, should not necessarily be taken as their own views, and pose a test of the college’s free speech principles. Some offended students and alums have demanded that the Hood administration take down the display before its scheduled removal next Tuesday.
A few words about the problems I see on both sides in online discussion (borrowing from what I wrote earlier there):
Dear Republican club students:
Much of the content in this display exemplifies simple-minded, talk-show-caliber conservative sloganeering, and some of it (see above) is pointedly insulting to some members of the Hood community likely to read it. Hood is an institution of higher learning with standards of rigor and civility to uphold. Please find better examples of intellectually sound conservatism, or expect to lose the battle of persuasion.
Also, if you post memes calling groups of your fellow citizens and Hood students mentally ill or supporters of genocide, you must expect that they, and many of the rest of us, will judge you and think less of you for doing that.
Finally, Hood as a private institution is as a background matter entitled to set its own rules for expression, and the First Amendment does not bind its hands in the same way that it would U-Md. or Towson. It may decide that some controversial views are okay to vent and others are not. There is one very important exception here, however, which is that if the government or the law are twisting Hood’s arm to crack down on speech then the First Amendment and its principles may come into direct play after all.
Dear offended Hood students, alums, and others:
Some of you may not have thought out all the implications of your comments and demands for the intellectual life of the university, which depends on a wide freedom to air ideas and assertions with which others strongly disagree.
Thus several of you have voiced versions of the slogan “this is not free speech, this is hate speech.” “Hate speech” has no status as a concept in American law; speech that is otherwise protected by law does not lose it simply because it is hateful or embodies hate. Although Hood as a private institution is free to play around with the concept if it wants, its ambiguities, subjectivity, and resulting inconsistency of application are among the reasons the law cannot force Hood to draw distinctions based on your having dubbed something hate speech.
Others assert that speech is violence. No. Speech is not violence. Violence is violence and speech is speech. Whether by design or not, the “speech=violence” slogan leads down a road that ends by rationalizing the use of violence against speech, since it can be framed in that case as self-defense.
A related assertion is that to be insulted, overlooked, ignored, or misunderstood is to be erased or to have one’s “very right to exist” at stake. No. Being insulted, no matter how nastily, is not the same as being physically annihilated. Once again, to confound the two is to raise the stakes in a case of insult to the same as they would be in a case of murder, the implication being that the keeping of peace requires the legal banning, not merely the condemnation, of insult.
One Frederick public figure asserts, in response to the display, that “Free speech does not give you the right to marginalize and attempt to demonize another person …[or] the right to propagate misinformation and fake statistics.”
Again, Hood as a private institution is free to set its own rules. But no one should take the above statement for an instant as a correct assertion about freedom of speech in the outside world where First Amendment principles are fully in play. There, on the outside (as to some extent within state-run universities) free speech definitely does include the right to adhere to and promote ideologies and systems of thinking that marginalize or demonize other persons. Nor is there a government power (absent some special circumstances such as fraud in commerce) to punish the propagation of misinformation and fake statistics in political, religious, or social argument. If every book that included misinformation, fake statistics, “marginalization” and so forth were removed from the Hood College library, few books would remain. If every person who uttered or wrote such things were removed from campus, Hood (like every other college) would soon be bereft of students and faculty.
Finally, for now, several local observers, again including public figures, have suggested that Hood may face liability under Title IX or other federal laws if it does not require the prompt removal of the display. The basic logic is that the students’ statements are said to create a so-called hostile environment based on transgender status or another protected class, and the university is legally obliged to act to end that hostile environment. To those who make this argument: be aware that by doing so, you are transforming the situation from one in which the students may not have First Amendment rights to one in which yes, they may have important rights of that sort. If the government or private parties filing complaints under its laws are trying to get them punished for their speech — and that includes arm-twisting the Hood administration into acting — then it may be that their right to quote Ben Shapiro rises to a constitutional dignity it would never have acquired otherwise. In that case, the Republican students might see a losing position turn into a legal winner.
I do not presume to prescribe what Hood should do, except that it should consider ignoring the voices who urge that federal law requires it to remove the display or punish the students.
Update Apr. 21 via The Frederick Extra: In her statement, Hood President Andrea Chapdelaine says the college will not remove the exhibit before its scheduled take-down on Tuesday, but that “I have requested that we follow College procedures to determine if these messages have violated policy, with appropriate sanctions to follow should such a determination be made.” Hood College Policy Statement 55, cited by critics of the display, is a broad ban on acts of discrimination and harassment. It can be found here (as policy statement) and here (as brochure).
Arnold Kling reviews recent rounds of political hardball in Montgomery County, including the ouster of officials who had been at odds with the teachers’ and other unions. As for the vaunted quality of public services, it’s not all it might be:
Because spending per student is by far the highest in the state, the WaPo constantly refers to Montgomery County as a high quality school system. However, the average outcomes in the County schools are mediocre. Students from the wealthiest parts of the County (three high schools in particular) produce good test scores, and the rest do not. Other school districts in Maryland get similar outcomes with students of similar backgrounds while spending much less money per student.
- Courageous and realistic: Baltimore Mayor Catherine Pugh vetoes city council bill that would have raised minimum wage to $15 [Eric Boehm]
- Kept in dark, fed manure: how insiders gulled delegates into approving terrible anti-craft-beer bill [Naptown Pint; bill later was amended after crossing to Senate, softening only some of its bad features before approval]
- Frederick county and city kicked in $10K each to lobby for state assistance to downtown hotel project;
- Bad prosecutorial behavior: “Judge rules again for Freddie Gray cops in suit against Mosby” [Baltimore City Paper, Marshall Project]
- The Slants, of Lee v. Tam SCOTUS trademark fame, coming to Frederick’s First Amendment Society at Flying Dog April 16 [First Amendment News] Case was the occasion for Cato to file possibly the most NSFW amicus brief in Supreme Court history;
- Maryland rescinds its four previous calls for an Article V constitutional convention [Danielle Gaines, Frederick News-Post, and thanks for mention; earlier from me]
George Liebmann of the Calvert Institute, who has been a critic of the U.S. Department of Justice’s consent decree with the city of Baltimore over policing practices, commented on the decree in a communication to the district court. What follows are excerpts from the submission to the court:
…The showing of current or recent constitutional violations by the named defendants that is a necessary predicate for federal jurisdiction and the decree is absent. The unsworn and unsigned Report attached to the Complaint recites few recent incidents, none chargeable to the current Mayor and Police Chief, and no improper directives by them. …
This is a City in which any number of Mayors, Councilmen and Police Chiefs have been black, as is at least 40% of its police force. Whatever the misconduct of a few individuals, the charge of racism is one that should not be lightly entertained, let alone sanctified, on slender or non-existent evidence, in a decree of a United States District Court. Such a finding is a jurisdictional prerequisite; the disclaimer in paragraph 5 that the City does not agree with the Findings in no way obviates the jurisdictional need for them. Their falsity and exaggeration is welcomed by the original sponsors of the decree because it feeds not only into a decree but into a political narrative supportive of electoral mobilization and identity politics.
The decree is transparently collusive—an alliance of two lame duck administrations to victimize unrepresented interests, those of the police unions and their members and those of the State, which will be pressured to provide money for reforms, the BPD being at least nominally a State agency. Nor is the United States Attorney anywhere to be found…. Article III of the Constitution limits court jurisdiction to “cases and controversies”, an important limitation. Moore v. Charlotte-Mecklenburg, 402 U. S. 47 (1971); Chicago and G.T.R. Co. v. Wellman, 143 U. S. 339(1892). There is none here; the parties have avowed since before this case filed their intention to enter a consent decree. Given the apparent lack of enthusiasm of the current Justice Department, entry of the decree will deliver public policy into the hands of advocacy groups. It is inconceivable that even the recent and current City administrations would have conceded control of the police to advocacy groups, including some with a declared agenda in favor of federal control of local law enforcement.
The vague and sweeping injunction contained in paragraph 8 can thus be enforced, if at all, only by contempt fines falling on City taxpayers and fustian from the bench. The Court, to be sure, will have the aid of a credulous press. Notwithstanding an express finding in the Report that the facts found on handling of sexual assault complaints did not establish a constitutional violation, the lead story by Sheryl Gay Stolberg and Jess Bidgood in the next day’s New York Times, August 16, 2016, page 1, column six at the top of the page bore the headline in the print edition: ”Baltimore Police Fostered a Bias Against Women.” The Court in its Agenda for Counsel accurately characterized the decree as “aspirational, general, lacking in deadlines” as well as lacking in information about “standards to be applied, resources, costs.”
Neither this Court nor the litigating lawyers framing the decree are authorities in police administration. As the ‘time line’ appropriately directed by the Court indicates, there are an almost comically large number of reporting requirements, the costs of which in time, manpower, morale, and response speed are not assessed. There is every reason to think that these external mandates will be resented and little in the recent history of structural decrees provides reason to think that they will be effective. Non-constructive compliance costs will be enormous, and, given paragraph 450, even the much-vaunted ceiling on monitors’ fees is bendable.
The City was vindicated in this court’s housing case after twenty years of costly litigation, the only relief granted being a cosmetic decree against the federal government affecting a few hundred families; while the case was pending, several hundred thousand minority families moved to the Baltimore suburbs without the court’s assistance. This court’s special education case was of equal length and bore fruit, as Kalman Hettleman and others have shown, in enhanced paper shuffling and no improvements in the quality of the personnel giving classroom instruction. …The effective police reformers have been Commissioners, not judges: William Bratton in 1990s New York and Los Angeles, Donald Pomerleau in 1970s Baltimore.
Paragraphs 251 through 259 of the decree relating to sexual assault are improperly included as a sop to advocacy groups in the face of a Report finding “We do not, at this time, find reasonable cause to believe that BPD engages in gender-biased policy in violation of federal law.”
The provisions of paragraphs 43(b) and 61 limiting arrests for loitering, misdemeanor trespass, (important in drug law enforcement), as well as disorderly conduct, gambling, and quality of life offenses will become rapidly known and are gifts to the underworld, lowering the risks and costs of illegal drug distribution and increasing its profitability. In no way do they foster or are they equivalent to the decriminalization of drugs. The benefits of decriminalization, all absent here, include labeling, licensing, quality control, availability of drug testing without fear of self-incrimination, excise taxes, enhanced revenues from sales, payroll, income and business taxes, and the replacement of a distribution system reaching into every workplace and classroom with one operating from fixed locations. Insofar as it curbs “broken windows” and “quality of life” enforcement, the decree completely deprives the City of options the value of which is the subject of political and professional controversy, a disservice to responsible self-government.
The decree cedes power not only to the federal court and its monitor but to the federal Department of Justice itself, see paragraphs 285, 286, 298, 319, 324, 483. The merit of Justice Jackson’s view may not have been apparent in October but should be in March: “I think the potentialities of a federal centralized police system for ultimate subversion of our form of government are very great.” The decree adopts unacceptable “disparate impact” criteria on both employment and enforcement, paragraphs 43, 423 and 511 (cc). It is particularly deplorable that the last of these restrictions is buried in the “Definitions” section of the decree. Its effect, as a representative of an advocacy group has joyfully proclaimed, is to prevent police from “targeting citizens in high crime areas.” Reduced enforcement in such areas is assumed to be a public good, an insight probably not shared by the residents. …The decree is not a harmless sop, but a measure whose effect on police recruitment and behavior threatens a sudden and complete collapse of public order, or at best a long period of slow attrition as police, residents and businesses vote with their feet for jurisdictions that have not thus handcuffed themselves….
The court is being urged to enter both a political thicket and a minefield, to no good purpose….
Respectfully submitted, George W. Liebmann
Note also (via Kevin Rector of the Baltimore Sun on Twitter) this paragraph acknowledging the collusive, or sweetheart, nature of the litigation:
Fact this paragraph is in a filing by Baltimore, in which the city is fighting FOR fed oversight of its police dept, strikes me as profound. pic.twitter.com/w37vSJQrOm
— Kevin Rector (@RectorSun) April 5, 2017
Rep. Jamie Raskin (D-Md.), who represents my district, tweets, “Disgraceful move by Trump admin to suppress the existence of #LGBT community. To all LGBT Americans: we hear and see you. #CantEraseUs ”
— Rep. Jamie Raskin (@RepRaskin) March 29, 2017
Rep. Raskin, along with many other members of Congress, is following the lead of the Human Rights Campaign and allies, which have launched a publicity campaign with claims like “The Trump Administration is erasing ‘sexual orientation’ & ‘gender identity’ from the 2020 census — but they #CantEraseUs.”
The Trump Administration is erasing "sexual orientation" & "gender identity" from the 2020 census — but they #CantEraseUs 1/4
— HumanRightsCampaign (@HRC) March 29, 2017
But as The Hill observes, “The Census has never included questions about sexual orientation and gender identity in its surveys.” Some activists had been hoping to change that but Gary Gates, a leading expert in LGBT demographics, says the planning process was not nearly far enough along to consider adding the questions to the 2020 survey. The Census Bureau is overseen by an Obama appointee and no one has offered evidence that incoming Trump people have sought a change in census policy. (h/t columnist Guy Benson on these last two points).
There are undoubtedly pluses to gathering personal data in new categories, but for all who care about 1) privacy and 2) the danger of future misuse of information, there are also minuses, perhaps especially worth noting on this topic. David Boaz in 2010 questioned the trend toward more intrusive and comprehensive census data collection.
Separately, I have noticed that “erase” and its variants now serve as an unfailing warning of “dubious assertions lie ahead.”
- Members of elite Baltimore police task force falsified search warrants, robbed at least 10 victims “including some who had not committed crimes, officials said.” And oh, the overtime: “one hour can be eight hours.” [Washington Post]
- Advisory state panel swallows dubious health claims, urges schools to cut off wi-fi [ACSH]
- “GOP legislators offer pension reforms” [Dan Menefee, Maryland Reporter]
- Desire for retribution aside, hanging homicide rap on dealers after overdoses unlikely to solve opiate problem [Mark Sine and Kaitlyn Boecker, Baltimore Sun]
- May I caress your shoulder now? “Maryland ponders dangerous ‘affirmative consent’ proposal” for Montgomery County schools [Ashe Schow, Watchdog on MC 14-17, Kelly-Morales bill]
- Recalling Tom Perez’s unusual 2013 Maryland Chamber endorsement [Tim Carney, Sean Higgins] Critical 2011 view of CASA de Maryland [James Simpson, AIM]
The idea of reverting all of Washington, D.C. or at least its residential sections to Maryland is not new; there used to be a southern portion of D.C. across the Potomac that reverted to Virginia long ago, which in no way has prevented the Pentagon and similar installations from functioning as federal buildings just like those housing other cabinet departments. Whatever the idea’s logic, however, it would seem to be a political non-starter. “According to an April 2016 poll, only 28% of Marylanders support annexing DC, while 44% are opposed.” [Chad Hughes, Greater Greater Washington]
“In fact, fracking has massive environmental benefits. The rapid expansion of natural gas production has prompted power plants all over the country to switch from coal to gas, which is both cheaper and burns much cleaner. Last year, largely thanks to this mass migration, American carbon emissions hit a 25-year low. Given its own grand green ambitions, Maryland ought to be embracing fracking.” [Chris Summers, Maryland Public Policy Institute]