Dobbs, Roe, and the Freakout Over Federalism

25 Wednesday May 2022

Posted by pnoetx in Abortion, Federalism, Uncategorized

Tags

Abortion, Adoption, Akhil Amar, Artificial Womb, Bill of Rights, Birth Control, CDC, Classism, Court Leak, dependency, Disparate impact, Dobbs v. Jackson Women’s Health Organization, Due Process Clause, Emergency Contraception, Equal Protection Clause, Establishment Clause, Eugene Volokh, Eugenics, Federalism, Fetal Homicide Laws, Fetal Rights, Fetal Viability, First Amendment, Fourteenth Amendment, Great Society, Josh Blackman, Judicial Activism, Later-Term Abortion, Margaret Sanger, Morning After Pill, Personhood, Planned Parenthood v. Casey, Privacy Rights, Pro-Life, racism, Roe v. Wade, Ruth Bader Ginsburg, Samuel Alito, Supreme Court, War Drugs, World Health Organization

The leak of a Supreme Court draft opinion in Dobbs v. Jackson Women’s Health Organization has created uproars on several fronts. The opinion, written by Justice Samuel Alito, represented a 5-4 majority at the time of its writing, but it is a draft opinion, and the substance and the positions of other justices might change before a final decision is handed down by the Court by the end of June. The draft would essentially uphold a Mississippi law restricting abortions after the first 15 weeks of pregnancy. This would overturn the Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) decisions. The former established that states could regulate abortion only beyond a certain stage of pregnancy (originally the first trimester), while the latter allowed states to regulate once a pregnancy reached the stage of fetal viability. While 24 weeks is often cited as the lower limit of viability, it is considered to be as early as 20 weeks by the World Health Organization, an estimate that could decline with future advances in prenatal and neonatal care (such as artificial wombs). In any case, viability would no longer be the standard if the draft opinion stands. Indeed, it would once again be up to states as to how they wish to regulate abortion.

Here is an update on where things stood on May 11th. Reportedly, the 5-4 majority still stood, and no other draft opinions existed in the case at that time. No news since.

Due Process and Privacy Rights

Was Roe v. Wade a good legal decision? Ruth Bader Ginsburg did not hold the opinion in high regard as a matter of the jurisprudence. Apparently, she felt that the Court should have simply struck down the restrictive Texas law in question without imposing a set of rules, which amounted to an aggressive infringement on the legislative function and the evolution of law, and case law, at the state level. Her words were:

“Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable. The most prominent example in recent decades is Roe v. Wade.”

She also felt the Court should not have leaned on the Due Process Clause of Fourteenth Amendment, which prohibits the denial of “life, liberty or property, without due process of law”. And she believed that relying on due process and the privacy rights of a woman and her physician made Roe vulnerable to challenge. She was probably right.

Yale Law School professor Akhil Amar, who is pro-choice, also believes the Roe decision was misguided and calls its reliance on due process “textual gibberish”. The objection to substantive due process is based on the absence of any principle establishing which “rights” not found explicitly in the Bill of Rights are valid, and which are not.

Equal Protection

In fact, Amar defends Justice Alito’s draft opinion and believes, as Ginsberg did, that the Equal Protection Clause of the Fourteenth Amendment is a better defense of abortion rights. The contention is that unless a woman possesses the right to terminate a pregnancy, she is not on an equal footing with similarly situated men in terms of self-determination and life opportunities. Of course, none of this weighs the interests of the unborn child.

Establishment Clause

Josh Blackmon has an interesting series of comments about whether the Establishment Clause of the First Amendment may be a valid defense of abortion rights. That seemingly preposterous claim relies on abortion as a right, in some cases, protected by the free exercise of religion. As Blackman sums up in his sixth point:

“… abortion rights groups should be careful what they wish for. If the Court recognizes a Free Exercise right to perform or receive an abortion, then conservatives can cook up even more aggressive religious liberty strategies. I’ll bring the bagels for the next meeting of the Temple of Automatic Weapons.”

Eugene Volokh makes several interesting points on attempts to use the Establishment Clause “to obtain exemptions from generally applicable laws”. A separate, misguided take at the Establishment Clause is that a law must be unconstitutional if it was based on religious beliefs. Volokh handily disposes of that contention here.

Judicially-Prescribed Rights vs. Constitutional Rights

Blackman has written that the Alito draft is a tour de force, addressing many constitutional principles and concerns expressed by other justices. In another post, Blackman explains a very basic rationale for a decision to overturn Roe. It is related to the objections expressed by Ginsberg and Amar, and to the many “lamentations” expressed in the Court’s abortion opinions over the years since Roe. Namely, that rule and establishment of new rights by court decision was not a mechanism intended by the framers of the Constitution, but self-government and federalist principles were:

“It is a mistake to argue that Dobbs extinguishes a right, without also acknowledging that the decision would restore another right. Overruling Roe would extinguish a judicially-created right to abortion, but it would restore a very different right: the right of the people to govern themselves.”

Personhood

Of course, none of these points are really germane to the crux of the pro-life argument to which I subscribe. However, both Roe and Casey acknowledge the state’s interest in protecting the fetus beyond some point in a pregnancy. The closer to term, the greater the interest. The implication is that a fetus gradually takes on degrees of “personhood” through the course of gestation, and that rights attach to that nascent individual at some point. Both Roe and Casey, by allowing states to regulate abortion beyond some point, offer recognition that the closer an abortion occurs to full term, the stronger the case that it may be prohibited.

The law in most European nations carries the same implication, and if anything leans more heavily in favor of fetal rights than Roe. Furthermore, there are 38 states with fetal homicide laws, which treat the fetus as a person in the case of a murder of a pregnant woman. In 29 of those states, the law applies at the earliest stages of pregnancy. This suggests that in most states, sentiments may weigh in favor of treating the fetus as a person imbued with constitutional rights.

In the end, this is not an exclusively religious argument, as the pro-abortion Left always suggests. For me, it’s purely an ethical one. At what point beyond conception are pro-abortion activists willing to concede that a human life is at stake? Apparently a heartbeat is not enough to convince them. Neither does the appearance of small fingers and toes. Nor the ability to feel pain. These are all things that happen before the child is “viable”. But even viability is not enough for some of the more radical abortion activists, who are proposing choice right up to the moment of birth. Incredibly, and despite the real limitations imposed on mid- or late-term abortions in many states (in line with Roe and Casey), some pro-choice advocates are now acting as if overturning these cases causes women to lose such an unfettered right!

Practical Matters

Anyone can obtain a variety of birth control alternatives without a prescription (and often for free). This includes emergency contraception, or the “morning after pill”. Granted, sometimes birth control measures fail, which places the prospective mother (and perhaps an involved or conscientious father) in a difficult position. Nevertheless, careful use of birth control would minimize the abortion problem and obviate much of the debate, but people are often too impulsive or careless about sex.

Late term abortions are a fairly small percentage of all abortions. The CDC reported that in 2018, 50,000 (~8%) abortions occurred after the first trimester (14+ weeks), and 6,200 (1%) took place at or beyond the point of theoretical viability (21+ weeks). This study found that of abortions at 20+ weeks, mothers tended to be younger (20 -24), discovered their pregnancies somewhat later, faced logistical and financial delays in arranging the abortion, or faced other challenging life circumstances. However, the researchers rebut a common rationale for late-term abortion when they say:

“… most women seeking later terminations are not doing so for reasons of fetal anomaly or life endangerment.”

Eugenics and Classism

Pregnancies among black women are terminated at a disproportionately high rate. That’s consistent with the original, eugenicistic and racist goals of Planned Parenthood founder Margaret Sanger. This is an outcome to top all disparate impacts. I have witnessed pro-abortion activists counter that these aborted lives would have been miserable, impoverished, and without opportunity — essentially not worth living — but these are value judgements of the most monstrous kind. I’ve also heard the pathetic argument that fiscal conservatives should be happy that abortions will reduce spending on aid programs. Of course, the plight of the would-be mother is also emphasized by pro-abortion advocates, but we should not be so eager to accept the tradeoff here: abortion gets the mother is off the hook, but a child’s life is at stake. No matter the odds of success, human beings are all endowed with potential and opportunity, and it’s not necessary to be economically secure to be happy or pursue dreams.

It’s easy to be pessimistic that public policy can ever mitigate the economic burden on impoverished women who bring unexpected or unwanted pregnancies to term, or to brighten the economic future of their children. After all, over the decades since the Great Society program was conceived, the welfare state has proven no better than a dependency treadmill. Family structure has been decimated by those programs and the destructive consequences of the failed (but ongoing) war on drugs. Likewise, public education is a disaster. However, there are also alternatives such as adoption, and there are many private individuals and organizations working to encourage prospective mothers and ease those burdens.

The Leak

The leak of the draft opinion in Dobbs is unfortunate as it compromises the ongoing integrity of the Court’s internal debates and proceedings. In addition to this institutional damage, the impropriety of staging protests outside the homes of justices and inside places of worship should be roundly condemned by people with respect for judicial integrity, privacy and free exercise. These protests are partly attempts to intimidate, and they have even been accompanied by threats of violence. The belligerent posture of these activists is unconscionable.

Long Live Federalism

Again, the Court’s final decision in Dobbs might not be the opinion in the leaked draft. However, if the Court does indeed overturn Roe, it would not outlaw abortion. Rather, it would allow voters in each state to have a voice in aligning the law with public sentiment. Some states will have more restrictive abortion laws than others, but even the Mississippi law at issue in Dobbs allows abortion up through week 15, almost two weeks longer than the original Roe limitation.

The country is still deeply divided on the issue of abortion. Fundamentally, a broader acceptance of the life-and-death reality of abortion would help bring more consensus on the issue. One theory I have is that many who oppose overturning Roe would simply rather not think about that reality. In their minds, Roe keeps abortion compartmentalized, safely walled off from conscience and sometimes even spiritual convictions. They rationalize Roe based on their inability to observe the person whose life is at stake, and they accept justifications that minimize the value of that life.

A single rule imposed by the Court has not and will not resolve these differences. Indeed, Roe and Casey were failed acts of judicial activism that should be reversed. While bad legislation is regrettable, it is always subject to review and challenge by the people. In a federalist system, a bad law is contained like a single experimental treatment in a large trial with multiple arms. However, in this case, unlike a trial with random selection of subjects, one treatment group may differ from others in important respects, and the objective is not to identify one single-best solution, but different solutions that work best for different groups. That is a closer approximation to real self-government than federal legislation and especially one-size-fits-all Court rule-making.

On Quitting Facebook, One Year Later

25 Friday Feb 2022

Posted by pnoetx in Censorship, Social Media, Uncategorized

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Censorship, CIA, CloutHub, Common Carrier, Content Moderation, Eugene Volokh, Facebook, Facebook Jail, Fact Checkers, FireEye, First Amendment, Frenemies, Friend Requests, Gab, GETTR, Hosting Function, Meta, MeWe, Parler, Public Square, Recommendation Function, Section 230 Immunity, Telecommunications Act of 1996, Telegram, Truth Social, Vivek Ramaswamy

I’m very happy to be off Facebook, or “Meta” as it now calls itself. The platform has become, effectively, a propaganda arm of governments, and one that appears to be engaging in unconstitutional censorship. More on that below.

One year ago my profile dropped off of FB entirely. I had decided to quit in January 2021 after about 15 years. I downloaded everything from my profile and wrote a blog post called “On Quitting Facebook”. It was my last entry there, so that’s really when I quit, but it took a month before they completely deactivated me.

You have to resist the temptation to go back during that interim month or it starts all over again — a new interim period, that is — when you finally decide to get out. I knew immediately that I loved being free of it, so that part was easy. My feelings haven’t changed a bit.

F-R-Double E

I no longer have to put up with the propaganda that FB prioritizes nor the “demoted post” phenomenon. None of my posts had actually been blocked outright, but I knew “Facebook jail” was happening to users with increasing frequency, as well as post blocking and “red flags” authorized by politically-motivated FB “fact checkers”.

Free of FB, I no longer have to put up with various “frenemies” I’d somehow collected. And quitting FB allowed me to reclaim precious time I’d been wasting on an obsession that one would think avoidable: scrolling through my news feed, sometimes more than once a day, to view an assortment of photos of meals, puppies, and peoples’ lovely feet propped-up in “relax mode”, plus huge dollops of left-wing political and economic BS, often delivered with snark. But of course the lefty BS is almost everywhere in media.

There was one other disturbing anomoly on FB that became more frequent for me: friend requests from exceptionally gruesome-looking characters. I think they were fake requests, but I had tight security on my profile, so the source and motive is anyone’s guess. The increasing frequency led me to wonder whether someone had information about me, which my security settings should not have allowed. That would have meant it was partly an “inside job” on FB, perhaps designed to intimidate me in one way or another. I have no idea, but I don’t miss those requests.

So there’s a lot to like about quitting FB! It certainly brought a few disappointments and challenges. Unfortunately, I did lose touch with some good people. In what follows I elaborate on certain legal ramifications of FB’s poor conduct in hosting users both privately and within what’s purported to serve as a “public square”; the social media frustrations I’ve experienced since quitting; and my impressions of a few other platforms.

Government Censorship?

FB is a private company, so the usual libertarian position is that it can run its platform any way it wants. It is therefore no business of the government’s whether FB moderates content, bans certain users, or takes editorial positions. However, FB benefits from immunity to prosecution under Section 230 of the Telecommunications Act of 1996, which was traditionally intended for common carriers like telephone companies. That means they can’t be held liable for anything a third party might say on their network. Say what you want on the phone, because liability-free carriers shouldn’t care. FB and other social media platforms receive this same protection. But should they?

While we can think of FB as a kind of modern public square, in some respects it looks more like a common carrier. By that I mean much of the communication that takes place on the platform is voluntary and between private contacts, or groups of “friends”. The voluntary nature of these connections is a key aspect of what Eugene Volokh calls the “hosting function”. No one is forced to look at what you post. Yet FB makes a habit of moderating the content of those posts and conversations and still receives immunity under Section 230.

In other respects, FB does resemble a public square. Content posted by one party can be shared by each contact with their own network of friends, and thus can “go viral”. But if FB moderates content, censors users, or takes political positions of its own via the “recommendation function” often exercised by social media platforms, then it is not acting purely as a public square. Indeed, in that case it is more like a publisher, which otherwise would not be immune from lawsuits.

The case against FB is even stronger than that, however. It has acted as a de facto agent of the government in several respects. A recent FOIA request has revealed a White House email showing:

“… Facebook, Merck, and the CDC Foundation, whose corporate partners includes Pfizer, have formed an alliance ‘to use social media and digital platforms to build confidence in and drive uptake of vaccines.’”

FB has also acted to delete user accounts at the behest of the U.S. and Israeli governments. And FB has partnered with a security firm called FireEye, which is funded by the CIA. There are other areas of “cooperation” between entities performing government-funded activities described at the last link.

The topic of social media giants censoring speech on behalf of the U.S. and other governments has been discussed by Vivek Ramiswamy, who notes the obvious breach of constitutional rights that it represents. It’s fine for a private firm to regulate speech on its own premises, but conducting censorship at the behest of government is equivalent to censorship by government and a flat out a violation of the First Amendment.

Moreover, FB has had the audacity to propose government “oversight” in its effort to moderate content. What, in the name of regulatory capture, could go wrong? I’d say the whole thing is Orwellian, but perhaps no more than what we’ve already seen. The best policy response, as Volokh suggests, might be to separate the hosting and conversation functions of social media from the recommendation function. The former can be treated as “common carrier” functions for the purpose of applying Section 230, with an obligation for non-discrimination and minimal content moderation, while the latter function would receive no immunity under Section 230.

My Post-FB Social Media Escapades

My blog lost a lot of readership when I quit FB. Last spring, however, I began a roughly five-month stint as a contributing blogger on a site that brought a jump in my readership. Unfortunately, it became clear, over time, that it was largely an audience unwilling to entertain more objective and sometimes technical considerations. I also became disillusioned after finding myself writing posts to debunk certain conspiratorial fantasies of other contributing bloggers on the site. I didn’t want to be associated with those writers, so I cut ties. My readership crashed again, but I’m not sure I lost many high-quality readers in that instance.

I joined various “free speech” social media platforms: first Parler (until it was taken down by Amazon, and I haven’t been back), and I’d been on MeWe, but then Gab, CloutHub, GETTR, and Telegram. MeWe, Gab, and CloutHub sponsor groups with shared interests, and I’ve made it a point to join Libertarian groups when I can find them. Those groups are not very active on CloutHub. GETTR feels a bit more like Twitter to me, and there are no group pages. Telegram is a secure messaging app with extra features. I just started a so-called “channel” there to which I can post my content. Users can view and subscribe to my channel if they wish, but I have to cross-post to other channels to find them. We’ll see how it goes, but there are a lot of people who LOVE Telegram!

A few friends from my FB days followed me to one or two of the “free speech” platforms, but only one of them seems to have maintained any presence there. Most of them became entirely inactive from what I can tell. I know some went back to FB, upon which so many people are dependent. Sometimes that’s for business reasons, which is both understandable and regrettable. Anyway, at least one of my former FB connections is still cross-posting some of my articles to FB, which is fine and I truly appreciate it.

Like FB, the alternative platforms I’ve tried are dominated by meme warriors. While a few trolls lurk there, MeWe, Gab, and CloutHub are very much echo chambers. But at least dissident voices have a place where they aren’t censored! In an ideal world we’d have diversity of thought and civility.

I’ve grown kind of numb to all the memes. I tend to scroll right past them in search of meatier fare. Memes tend to over-simplify complex issues and appeal to mood affiliations. They generally offer zero evidence in support of their messages. Even worse is their impact on attention span. It’s extremely difficult to get users to read anything longer than a meme blurb. In fact, there are people who notice the headlines on my posts and make immediate comments on that basis, as if I’m posting memes! But again, FB is very much a hall of memes, so I don’t mean to imply that there’s been any change for me in that respect … I just like to bitch about memes!

There are a few anti-semites on some of the “free-speech” sites, Gab in particular. In fact, Gab is thoroughly dominated by the religious right, so the anti-semitism is all the more striking. Excepting the Jew haters, whom I can block, I respect the religious right, and our interests are often aligned. However, a steady diet of posts with Christianity as an emphasis makes Gab less than ideal for me. Besides, every time I click on the Gab app it takes like 15 seconds to load on my phone!

I joined MeWe well before I quit FB. Nevertheless, I’ve had trouble getting traction there and I’m thinking of dropping out just to simplify my life. So far, CloutHub seems a little better in terms of generating visits to my blog.

It’s hard for a small-time blogger like me to get much notice on GETTR. There are some well-known conservative personalities there, so there are some decently informative posts. I have not been very active on Telegram, but that might change, as I said above.

I’ve been on LinkedIn for many years, but I’ve only recently decided to begin posting my articles there. I’ve lost a handful of connections as a result! That’s okay. As I like to say, eventually I’ll piss everyone off! I do get some views from LinkedIn, but users who might agree with my point of view are often too chickenshit to say so. That’s more understandable on a platform oriented toward career and professional contacts. However, I think the perception of social pressure is not very much different than the intimidation some people feel on FB.

I’ve considered joining the Truth Social platform, Donald Trump’s foray into social media. It’s billed as a “big tent”, but it will be another echo chamber, I’m sure. It’s also been a technical mess so far (not unique among new apps in that respect). I’m no Trump hater by any means, but any post that might be critical of him is almost certain to attract some hate on Truth Social (the link no is satire, btw). That’s not censorship per se, but TS might not be a great place for some of my posts.

No Going Back

Maybe the last section above was more self-assessment than anything else. As a personal decision, quitting FB was unequivocally positive for me. It hurt my blog readership, but I still hope to gain momentum on other platforms and to promote Sacred Cow Chips by placing links on other sites. In any case, I blog for myself as much as anyone else, just because I enjoy writing, thinking about issues, and occasionally doing a “deep dive” to research an issue.

The censorship occurring on the big social media platforms is simply unacceptable, and I wish more people would rise-up against it. I experienced some schadenfreude when I saw that Meta’s (Facebook’s) financials were a disappointment last quarter. The number of active users declined ever so slightly, but that was a first for FB. One can only hope it’s a trend in the making. And see this, though it might be a bit over-optimistic. Damn the censorship!

Every Gentleman Best Heed the Power of Hysterics To Censor

19 Saturday Feb 2022

Posted by pnoetx in Censorship, Gender Differences, Uncategorized

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Abortion, Antifa, BLM, Bullying, Center for the Study of Partisanship and Ideology, Civil Rights Law, Critical Race Theory, Dark Triad, Defense Priorities, Disparate impact, Equal Pay, Eric Landers, Family Leave Mandates, Feminization, First Amendment, Gender Conventions, Gender Studies, Georgetown Law School, Grievance Studies, Harrassment, Hate Speech, Human Resources, Ilya Shapiro, Joe Biden, Minimum Wage, Noah Carl, Racial Quotas, racism, Richard Hanania, Sexism, Virtuous Victimhood, Yale Halloween

Here are the gender conventions we’ve adopted in Western society on the rules of debate:

“We accept gender double standards, and tolerate more aggression towards men than we do towards women. We also tolerate more hyper-emotionalism from women than men.”

So says Richard Hanania in an essay called “Women’s Tears Win In the Marketplace of Ideas“. Hanania is the president of the Center for the Study of Partisanship and Ideology, and a research fellow at Defense Priorities. He offers some cogent examples of this disparate treatment, such as the Yale Halloween costume imbroglio and the “cancelling” of Ilya Shapiro at Georgetown Law School. To those we can add Eric Landers’ forced withdrawal as Joe Biden’s chief science advisor, and there are countless others. About this, Hanania says:

“What makes these cases difficult is that male versus male argumentation just has completely different rules, norms, and expectations than male versus female. … A man can’t just yell in another man’s face for 5 or 10 minutes about how he’s hurting his feelings. If a man does behave this way, bystanders are more likely to feel disgusted than join in or play the role of white knight. The man at the receiving end of the abuse is at some point going to have to escalate towards violence, or back down and say something about how this is beneath him. Depending on the situation, observers may assume violence is a distinct possibility, and get between the two sides.

None of these options are available when getting yelled at by a woman. You certainly can’t make an implicit threat of violence. Raising your voice will turn everyone against you, and even walking away can look heartless.”

I’ve witnessed a few pathetic crying jags in the workplace myself, as well as some volleys of verbal belligerence from females on social media that were pointedly anti-social. In my experience, most women can dish out barbs good-naturedly in jest and conduct themselves with dignity in debate. On the other hand, there are too many men who become hostile in debate, which most observers will find much less sympathetic if the counter-party is a woman. And there are a few men, here and there, who have trouble holding back tears in a fraught exchange, but we all know it’s not a good look.

To state the obvious, tears are a natural reaction to grief or real hurt. Anger is well-justified in response to criminal or personal wrongs. Nevertheless, it’s necessary to distinguish between these kinds of reactions and the ignoble tears or venom sometimes brought to controversial debates by neurotic partisans. As Hanania says of our disparate gender conventions, considerable censorship is instigated by an intransigent minority of women who manage to “… indulge their passions in ways that men cannot … .” Most men, anyway… and if they do, they’ve usually lost and know it.

These passionate displays are often tied to claims of individual or group victimhood. The objector could be anyone who feels an under-appreciated beef, but acting-out in order to signal “virtuous victimhood” in this way might indicate a deeper instability.

Again, as Hanania says, females have a definite advantage in the deployment of tears, confrontational rhetoric, and screams. Coincidentally, in a post to which Hanania links, Noah Carl marshals data on the extremely skewed representation of degrees awarded to women in Grievance Studies (e.g. Gender Studies and Critical Race Theory).

Too often, claims of victimhood are invoked in attempts to rebut any number of principled policy positions. For example, your views might be construed as offensive, racist, or sexist if you oppose such things as an increase in the minimum wage, racial quotas, disparate impact actions, equal pay rules, family leave mandates, and abortion. Expressing a strong and reasoned defense of many positions can foment imagined micro-aggressions or even harassment.

The real danger here is that honest debate is suppressed, and with it, very often, the truth. I acknowledge that people must be free to express or defend their views passionately, and with tears, screams, or otherwise, which the First Amendment guarantees. Our gender conventions in this matter should be revisited, however, if men and women are truly to be on equal footing.

Whether baring fangs or shedding tears, there are self-appointed arbiters of acceptable speech represented in almost all of our public and private institutions, ready to shut down debate on account of their feelings. They have more than a few sympathetic allies, male and female, at higher levels of their organizations. In the past, Hanania has discussed the over-representation of females in Human Resource departments. In these contexts, adjudication of disputes often relies on vague notions of what constitutes “hate speech” or “harassment” under Civil Rights Law. If you manage to provoke the tears of a colleague or underling, you’re probably behind the eight ball!

Hanania considers some alternative ground rules or “options” for debate:

Expect everyone who participates in the marketplace of ideas to abide by male standards, meaning you accept some level of abrasiveness and hurt feelings as the price of entry.
Expect everyone to abide by female standards, meaning we care less about truth and prioritize the emotional and mental well-being of participants in debates.”

Either of these options is better than the double standard we have now, and Hanania point to a number of egregious manifestations of our double standard. As he notes, #2 might be what’s meant by the “feminization of intellectual life”, but it fosters the arbitrary prohibition against discussion of any number of ideas that belong on the policy menu.

Option #1 would undoubtedly be condemned as “traditional male dominance” of public debate, but it would bar no one from participation, and obstacles perceived by females, or any sensitive soul, can be viewed as a matter of socialization. Both tearful and ferocious argumentation should be marginalized regardless of the antagonist’s gender.

Imperfect as they are, we have laws and/or social strictures against harassment, bullying, and other aggressive behavior thought to be largely associated with malcontented males. But as Hanania says:

“We haven’t even begun to think carefully about equivalent pathologies stemming from traits of the other sex.”

This problem obviously pales in comparison to the fascist tactics typical of the far Left. That includes the violent behavior of Antifa and BLM, unethical attempts blame conservatives for various, often fabricated deeds, and to threaten and punish them economically, even to the point of state-sponsored thievery and threats of harm to family members. Despite the more benign nature of the disparities discussed here, restoring gender equality to the terms of civil debate, without tears and hysterics, would be a great step forward.

Censorship and Content Moderation in the Public Square

30 Thursday Sep 2021

Posted by pnoetx in Censorship, Free Speech, Social Media

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Anthony Fauci, Censorship, Clarance Thomas, Common Carrier, Communications Decency Act, Eugene Volokh, Facebook, First Amendment, Good Samaritan Provision, Hosting Function, LinkedIn, Luigi Zingales, Mark Zuckerberg, Network Externalities, Philip Hamburger, Public Accomodations, Section 230 Immunity, Sheryl Sandberg, Supreme Court, Trump Administration, Vivek Ramaswamy

I’m probably as fed up with social media as anyone, given the major platforms’ penchant for censoring on the basis of politics, scientific debate, religion, and wokeism (or I should say a lack thereof). I quit Facebook back in January and haven’t regretted it. It’s frustratingly difficult to convince others to give it up, however, and I’ve tried. Ultimately, major user defections would provide the most effective means of restraining the company’s power.

Beyond my wild fantasies of a consumer revolt, I will confess to a visceral desire to see the dominant social media platforms emasculated: broken up, regulated, or even fined for proven complaints of censorial action. That feeling is reinforced by their anti-competitive behavior, which is difficult to curb.

Are There Better Ways?

While my gut says we need drastic action by government, my head tells me … not … so … fast! These are private companies, after all. I’m an adherent of free markets and private property, so I cannot abide government intrusions to force anyone to sponsor my speech using their private facilities. At the same time, however, our free speech rights must be protected in the “public square”, and the social media companies have long claimed that their platforms offer a modern form of the public square. If they can be taken at their word, should there be some remedy available to those denied a voice based upon their point-of-view by such a business? This seems especially pertinent when access to “public accommodations” is so critical to the meaning of non-discrimination under current law (not that I personally believe businesses should be forced to accommodate the specific demands of all comers).

In a lengthy and scholarly treatment of “Treating Social Media Platforms Like Common Carriers”, Eugene Volokh states the following about U.S. Supreme Court case law (pg. 41):

“Under PruneYard and Rumsfeld, private property owners who open up their property to the public (or to some segment of the public, such as military recruiters) may be required by state or federal law to share their real estate with other speakers.”

The Common Carrier Solution

Volokh’s article is very detailed and informative. I highly recommend it to anyone hoping to gain an understanding of the complex legal issues associated with the rights of big tech firms, their users, and other interested parties. His article highlights the long-standing legal principle that so-called “common carriers” in telecommunications cannot discriminate on the basis of speech.

Volokh believes it would be reasonable and constitutional to treat the big social media platforms as common carriers. Then, the platforms would be prohibited from discriminating based on viewpoint, though free to recommend material to their users. He also puts forward a solution that would essentially permit social media firms to continue to receive protection from liability for user posts like that granted under Section 230 of the Communications Decency Act:

“… I think Congress could categorically treat platforms as common carriers, at least as to their hosting function. But Congress could also constitutionally give platforms two options as to any of their functions: (1) Claim common carrier status, which will let them be like phone companies, immune from liability but also required to host all viewpoints, or (2) be distributors like bookstores, free to pick and choose what to host but subject to liability (at least on a notice-and- takedown basis).”

Economist Luigi Zingales emphasizes the formidable network externalities that give the incumbent platforms like Facebook a dominance that is almost unshakable. Zingales essentially agrees with Volokh, but he refers to common carrier status for what he calls the “sharing function” with Section 230-like protections, while the so-called “editing function” can and should be competitive. Zingales calls recommendations of material by a platform part of the editing function which should not be granted protection from liability. In that last sense, his emphasis differs somewhat from Volokh’s. However, both seem to think an change in the law is necessary to allow protections only where they serve the “public interest”, as opposed to protecting the private interests of the platforms.

The most destructive aspect of Section 230 immunity is the so-called “Good Samaritan” clause aimed at various kinds of offensive material (“… obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”), which the social media platforms have used as “a license to censor”, as Philip Hamburger puts it. Here, Eugene Volokh and others, including Supreme Court Justice Clarence Thomas, assert that this provision should not receive a broad interpretation in determining immunity for content moderation decisions. In other words, the phrase “otherwise objectionable” in the provision must be interpreted within the context of the statute, which, after all, has to do with communications decency! (Here again, I question whether the government can legitimately authorize censorship in any form.)

Arm of Government?

Viewpoint discrimination and censorship by the platforms is bad enough, but in addition, by all appearances, there is a danger of allowing companies like Facebook to become unofficial speech control ministries in the service of various governments around the world, including the U.S. Here is Vivek Ramaswamy’s astute take on the matter:

“… Facebook likely serves increasingly as the censorship arm of the US government, just as it does for other governments around the world.

In countries like India, Israel, Thailand, and Vietnam, Facebook frequently removes posts at the behest of the government to deter regulatory reprisal. Here at home, we know that Mark Zuckerberg and Sheryl Sandberg regularly correspond with US officials, ranging from e-mail exchanges with Dr. Anthony Fauci on COVID-19 policy to discussing “problematic posts” that “spread disinformation” with the White House.

If Zuckerberg and Sandberg are also directly making decisions about which posts to censor versus permit, that makes it much more likely that they are responsive to the threats and inducements from government officials.”

Even LinkedIn has censored journalists in China who have produced stories the government finds unflattering. Money comes first, I guess! I’m all for the profit motive, but it should never take precedence over fundamental human rights like free speech.

There is no question of a First Amendment violation if Facebook or any other platform is censoring users on behalf of the U.S. government, and Section 230 immunity would be null and void under those circumstances.

Elections … Their Way

On the other hand, we also know that platforms repeatedly censored distribution of the Trump Administration’s viewpoints; like them or not, we’re talking about officials of the executive branch of the U.S. government! This raises the possibility that Section 230 immunity was (or should have been) vitiated by attempts to silence the government. And of course, there is no question that the social media platforms sought to influence the 2020 election via curation of posts, but it is not clear whether that is currently within their rights under Section 230’s Good Samaritan clause. Some would note the danger to fair elections inherent in any platform’s willingness to appease authoritarian governments around the world, or their willingness and ability to influence U.S. elections.

Pledge of Facebook Allegiance

Some of our domestic social media companies have become supra-national entities without a shred of loyalty to the U.S. This article in The Atlantic, of all places, is entitled “The Largest Autocracy on Earth“, and it has a sub-heading that says it all:

“Facebook is acting like a hostile foreign power; it’s time we treated it that way.”

The article reports that Facebook’s Mark Zuckerberg has promoted the mantra “company over country”. That should disabuse you of any notion that he cares one whit about the ideals embodied in the U.S. Constitution. He is a child consumed with dominance, control, and profit for his enterprise, and he might be a megalomaniac to boot. If he wants to host social media relationships in this country, let’s make Facebook a common carrier hosting platform.

On Quitting Facebook

22 Friday Jan 2021

Posted by pnoetx in Censorship, Social Media

≈ 3 Comments

Tags

Amazon, Antifa, Big Tech, BLM, Cartman, Censorship, Chinese Communist Party, Deactivation, Deplatforming, Donald Trump, Facebook, First Amendment, Gab, Google, Instagram, Market Power, Messenger, MeWe, Parler, Rumble, Sacred Cow Chips, Section 230, Shadow Bans, Signal, Telecommunications Act, Telegram, Third Reich, Twitter, Weimar Republic, WhatsApp

Cartman is awesome! Haha! But really, that kind of reaction to the dominant social media platforms is well deserved, especially given their recent behavior. Listen to this: my wife’s church held a service of hymns and prayer for “healing the nation” on Tuesday. The church’s IT administrator posted an advance notice about the service on the church’s Facebook wall. There was nothing overtly political about the notice or the service itself. Nevertheless, somehow FB deemed the notice subversive and blocked it! We are not dealing with decent or reasonable people here. They are pigs, and we don’t have to do business with them.

FaceHook

A number of years ago, a woman told me FB was “the Devil!” She was very good natured and I laughed at the time. But there are many reasons for people to wean themselves from social media, or at least from certain platforms. The web abounds with testimony on lives improved by quitting FB, for example, and there are forums for those who’ve quit or would like to. There’s also plenty of practical advice on “how to leave”, so there is definitely some interest in getting out.

Ditching FB offers a certain freedom: you can eliminate the compulsion to check your news feed and escape those feelings of obligation to “like” or comment on certain posts. These are distractions that many can do without. No more efforts to “unsee” expressions of foot fetish narcissism! Free of the pathetic virtue signals that seem to dominate the space. And quitting might be especially nice if you’re keen on cutting ties with certain “frenemies”. Almost all of us have had a few. This study found that quitting FB results in less time online (surprise!) and more time with family and friends (pre-COVID lockdowns, of course). It also found that quitting leads to less political polarization! Imagine that!

There’s no question that FB helped me make new friends and reconnect with old ones. It also led to overdue severing of ties with a few toxic individuals. I know I’m likely to lose contact with people I truly like, and that’s too bad, but in most cases I must leave it up to them to stay in touch (read on). Obviously, there are many ways to stay in contact with friends you really want to keep.

FacePurge

As for politics (and seemingly every aspect of life has been politicized), now is a very good time to quit FB if you believe in free expression, the value of diverse opinion, and a free marketplace of ideas. FB doesn’t want that. As the episode at my wife’s church demonstrates, FB has been brazenly selective in suppressing opinion, like other prominent social media platforms. It was obvious well before the presidential election, and it has become intolerable since.

How To Defacebook

There are voices that counsel patience with the tech giants. They recommend a strategy of diversification across platforms, without necessarily quitting any of them. I can understand why certain people might prefer that route. It’s well nigh impossible to migrate an extended family to another platform, for example. However, juggling several accounts can be a problem of time management. And for me, this all boils down to a matter of disgust. It’s time to stick it to FB.

This rest of this post offers some practical advice on quitting FB and more thoughts on how and why I’m doing it. This will also appear on some speech-friendly platforms, so if you see it there and you haven’t quit FB, do it! You’re already halfway there.

The first decision is whether to quit outright or deactivate. Many don’t have the fortitude to stay away if they merely deactivate, and maybe they just need a break. For others, FB has earned an enmity that can only be satisfied by leaving for good. Count me among the latter.

You should reclaim all of your data before you quit: you can download it to a zip file, which will include all of your photos, chats, “About” information, your friends’ birthdays, etc… While it’s been claimed that shutting your account will cleanse Facebook of all your data, that’s not entirely the case. For example, your friends might still retain chats in which you participated. In fact, I’m not convinced all of your data isn’t permanently in FB’s possession, if not the NSA’s, but we might never know.

You should also change your login credentials on other online accounts linked to FB. You should be able to identify some or maybe all of those by looking at the password section in “Settings”. I’m not sure whether scrolling though and checking all the apps listed in Settings will help — it didn’t help me identify anything that the password section did not.

It’s a good idea to keep Messenger up for a while in case any of your friends want to inquire or find a way to stay in touch. That’s fine, but to really rid yourself of FB, you must part with Messenger eventually. Of course, you’ll lose Instagram and WhatsApp when you quit FB. I don’t use those, so it won’t be a problem for me.

Then there are the “I’m Going To Quit!” status updates, sometimes laced with sadness or anger. I haven’t found those particularly appealing in the past… I’ve often wondered if they were merely ploys to get attention. But things have changed. I will add this post to my wall and leave it there for a few days. My *noble* intent is to help others quit, and to do my small part to foster a more competitive social media environment. Another way to communicate your departure would be to use Messenger to inform selected friends, but that’s more work. And by the way, in anticipation of my stop date, I’ve been culling my friends list more aggressively than ever.

Once you pull the trigger and click “Delete”, your account will remain active for a few days. Don’t be a sucker. Delete the app on your phone. Wait it out. Forget about it!

Not OurBook

Again, there was never a better time to dump FB. Beyond any emotionally corrosive aspects of social media, the last straw should be the selective censorship of political views, shadow bans, outright bans, and deletion of groups. Lately, it’s been like witnessing the early transition from Weimar to the Third Reich. We can only hope the full transition will remain unfulfilled.

For a company protected from liability under Section 230 of the Telecommunications Act, FB’s refusal to respect First Amendment rights and to abide diversity of opinion is shocking. Don’t tell me about fact checking! Facebook fact checkers are politically motivated hacks, and the new “oversight board” is not likely to help you and me. The presumption underlying Section 230 is that these platforms are not publishers, but having abandoned all pretense of impartiality, they should not be entitled to immunity. Moreover, they have tremendous market power, and they are colluding in an effort to consolidate political power and protect their dominant market position.

Big Tech, and not just FB, has been flagrant in this hypocrisy. These firms have deplatformed individuals who’ve questioned the legitimacy of the presidential election, and there is plenty to question. But they refuse to censor Antifa and BLM rioters, antisemites, state terrorists, and genocidal tyrants from around the world, including the Chinese Communist Party. More recently, FB and other platforms have condemned supporters of President Trump, as if that support was equivalent to endorsing those who stormed the Capital on June 6th. And even if it were, would an objective arbiter not also condemn leftist violence? How about equal condemnation of the Antifa and BLM rioters who ravaged American cities throughout last summer? Or those who rioted at the time of Trump’s inauguration?

The social media platforms won’t do that. FB is bad, but Twitter is probably the worst of them all. I quit using Google years ago due to privacy concerns, but also because it became obvious to me that it’s search results are heavily biased. Amazon pulled the rug out from under Parler, and I will quit using Amazon when my Prime membership is up for renewal unless Jeff Bezos starts singing a different tune by then. These companies are anticompetitive, but there are other ways to buy online, and there is plenty of other video programming.

Let’s Book

The power of Big Tech is not absolute. Remember, there are alternatives if you choose to quit or diversify: check out MeWe, Clouthub, Rumble (video hosting), Gab, Signal, and Telegram, for example (see this interesting story on the latter two). And Parler, of course, if it manages to find a new hosting service or wins some kind of emergency relief against Amazon.

Message me for my contact information or my identity on other platforms, or you can always find my ruminations at SacredCowChips.net. You can even share them on FB (if they’ll let you), at the risk of alienating your “woke” friends! So long.

Atheism Cannot Disqualify for Public Office

26 Saturday Sep 2020

Posted by pnoetx in Supreme Court

≈ Leave a comment

Tags

Abortion Rights, Amy Coney Barrett, Bret Kavanaugh, Diane Feinstein, Donald Trump, First Amendment, Religious Freedom, Religious Test, Roe v. Wade, Ruth Bader Ginsburg, Supreme Court

Amy Coney Barrett makes a lousy target for personal attacks by the Left. Barrett is President Trump’s nominee for the Supreme Court vacancy following the death of Justice Ruth Bader Ginsburg. A fabricated scandal against Barrett would be much less credible than even the allegations made against Bret Kavanaugh at his confirmation hearings in 2018. So Democrats believe their best opportunity is to paint Barrett as a religious “crazy” who, if confirmed by the Senate, will allow her religious convictions to influence her opinions on the Court relative to issues such as abortion rights under Roe v. Wade.

Barrett has offered rejoinders to Senator Diane Feinstein’s comments (“The dogma lives loudly within you.“) at the hearings on Barrett’s appointment to the Federal Appeals Court in 2017. In particular, Barrett has noted that a religious test is unconstitutional as a criterion for public office, including judgeships. In fact, in another way, Barrett has demolished the claims made by leftists against the qualifications for the bench of those of deep faith. Her argument exposes the Leftist position as an absurdity.

The presumption is that someone having religious convictions has a certain set of moral principles that might be brought to bear on court decisions. We’re expected to believe that’s a danger unique to those of faith. Barrett notes that non-religious individuals, even atheists, have their own set of moral principles. By the same standard, should we not concern ourselves that an atheistic nominee might bring their moral principles to bear on court decisions? Or are we to believe those principles are somehow superior to those associated with religious convictions? That they should simply be overlooked, but not for those of religious faith? Rather, a fundamental requirement is whether a nominee understands and respects the difference between jurisprudence and legislating from the bench, a distinction that was sometimes lost on Ginsburg.

To assert that an atheist’s moral convictions are more objective than those of a religious individual is a flaw in logic and a horrific value judgement. I am not a particularly religious person, but I respect people of faith as well as the protections afforded to the free practice of religion by the First Amendment of the U.S. Constitution. It’s worth noting that those protections apply to atheists as well as religious sects. As Barrett’s position implies, to distrust the judicial judgement of a person of religious faith is as wrongheaded as to distrust the judicial judgement of a nominee devoid of religious faith.

Activists Prey On Corporate Pushovers

05 Sunday Jul 2020

Posted by pnoetx in Corporatism, Identity Politics, Political Correctness

≈ 1 Comment

Tags

Aaron Clarey, Asshole Consulting, Black Lives Matter, Capitalism, Captain Capitalism, Corporate Donations, Corporatism, Danegeld, First Amendment, Rudyard Kipling, Virtue Signaling, Welfare State

I don’t think I’ve ever linked to anything on Captain Capitalism’s site. I know I’ve been tempted. The Captain is Aaron Clarey, a lively writer who is so politically incorrect he’s almost guaranteed to offend the faint of heart. His consulting company is known as Asshole Consulting because his gig, he says, is to be a truth-telling asshole so he can save you from yourself. I check his blog from time-to-time because he’s unabashedly pro-capitalist (not to be confused with corporatist!), he has interesting points of view, and well, he can be very entertaining.

Clarey wrote a piece a few days ago entitled “Corporate Donations to BLM vs. Government Spending on the Black Community“. Here are a few of his points:

- Corporate gifts to Black Lives Matter and similar organizations dedicated to black causes are a mere pittance relative to the trillions of disproportionate benefits that have been paid by the government to aid blacks over the years. By “disproportionate” Clarey means the excess of those benefits above the black share of the population.

- The disproportionate government benefits have been gloriously unproductive as a permanent solution to end black poverty. Clarey says, “… the multiple trillions of dollars [spent by government] has not closed the:

wage
health
income
savings
life expectancy

gaps between black and white“

- The comparatively tiny corporate donations “may enrich some black activists who sit on the boards of these non-profits, but it will not do one damn thing to tangibly improve the lives of black people in the US.”

- Clarey then challenges “anybody of any political or racial stripe to be intellectually honest with themselves and acknowledge what this laughable joke of “corporate donations” are – Marketing. Placating. Danegeld. Virtue-signaling. These corporations do not care about black people, they care about themselves and are capitalizing off of a tragedy to profit.“

I’ve worked for some large corporations over the years and they all play these games: not only are shareholder resources dolled out to every special interest under the sun, who are now deemed “stakeholders”, but employees are constantly harangued because they just might have less than appropriate consciousness of these interests. Staff time is dedicated to training employees in “right-think”, and they are asked to bend and twist their objectives and job descriptions in order that they appear to revolve around those interests. It’s patently ridiculous. And now, some of these corporations have been cowed into withdrawing advertising dollars to sites that might offend those whom the corporations don’t wish to offend, or sites that might support the First Amendment rights of those whom their intimidators wish to silence.

Clarey’s use of the term “Danegeld” is particularly interesting. He means that the primary interest of these corporations is in buying off potentially hostile forces. That‘s exactly what’s going on here! The cowardly upper management of these companies would be better off taking Rudyard Kipling’s advice on the matter (with apologies to my Danish friends):

“It is always a temptation to an armed and agile nation
To call upon a neighbour and to say: —
‘We invaded you last night–we are quite prepared to fight,
Unless you pay us cash to go away.‘

And that is called asking for Dane-geld,
And the people who ask it explain
That you’ve only to pay ’em the Dane-geld
And then you’ll get rid of the Dane!

It is always a temptation for a rich and lazy nation,
To puff and look important and to say: —
‘Though we know we should defeat you, we have not the time to meet you.
We will therefore pay you cash to go away.’

And that is called paying the Dane-geld;
But we’ve proved it again and again,
That if once you have paid him the Dane-geld
You never get rid of the Dane.

It is wrong to put temptation in the path of any nation,
For fear they should succumb and go astray;
So when you are requested to pay up or be molested,
You will find it better policy to say: —

‘We never pay any-one Dane-geld,
No matter how trifling the cost;
For the end of that game is oppression and shame,
And the nation that pays it is lost!'”

Hospital Price Insanity

15 Sunday Dec 2019

Posted by pnoetx in Health Care, Health Insurance

≈ 2 Comments

Tags

Affordable Care Act, Allowable Amounts, Avik Roy, Certificate of Need, Chris Pope, Claims Repricing, Disproportionate Share Hospital Payments, Dr. Keith Smith, DSH Payments, EconTalk, First Amendment, John C. Goodman, John Cochrane, Mandated Price Transparency, Medicare, Robert Laszewski, Russ Roberts, Shoppable Sevices, Surgery Center of Oklahoma, Uncompensated care

Almost nothing is less transparent than hospital pricing. If you’re shopping for a procedure, you probably won’t hear about the negotiated prices worked out with large insurers…. you’re likely to be quoted something much higher. A high price is billed to an insurer, but the excess above their negotiated prices is “disallowed” via contractual adjustment. You and/or your small insurer might not get the same deal. As Robert Laszewski says:

“The chargemaster is complete nonsense that really doesn’t matter — unless you are an uninsured person and you’re getting these huge bills driving you toward bankruptcy. The biggest irony of the U.S. healthcare system is that only the uninsured — often people who don’t have a lot of money — are the only ones the hospital expects to pay these incredibly inflated prices!”

An uninsured patient might be billed at the higher rate, but of course few end up paying. But there is harm in this arrangement, and it extends well beyond the uninsured. You might not be surprised to learn that the government is right in the middle of it. Read on…

What a Racket!

There’s some slight of hand going on in hospital pricing that creates perverse incentives. Who has something to gain from a huge gap between the full price and the hospital’s allowable charge? The answer is both the hospital and insurers, and that’s true whether the hospital is for-profit or nonprofit. When the list price and the size of the discount increase, the insurer gets to brag to employer-plan sponsors about the great savings it negotiates. In an episode on EconTalk, Dr. Keith Smith, a partner in the ultra-competitive and cash-only Surgery Center of Oklahoma, says (only partly in jest) that the conversation between the insurer and hospital might go something like this:

“Now, what the insurers actually do is ask the hospital administrators, ‘Can you do a brother a favor and actually charge $200,000 for that, so that our percentage savings actually looks larger?‘”

This does two things for the insurer: it impresses employers as prospective plan sponsors, and it might also earn the insurer a bonus known as Claims Repricing, whereby the employer pays a commission on the discounts the insurer “negotiates”.

What about the hospitals? How do they benefit from this kind of arrangement? By inflating the “list price” of procedures, the hospital creates the appearance of a write-down or loss on a substantial share of the care it provides, despite the fact that its real costs are far below list prices and usually below the discounted “allowable amounts” negotiated with insurers as well. The appearance of loss serves to benefit the hospitals because they are compensated by the government on that basis through so-called Disproportionate Share Hospital (DSH) payments. These are, ostensibly, reimbursements for so-called uncompensated care.

This would not be such a travesty if the prices approximated real costs, but they don’t, and the arrangement creates incentives to inflate. The DSH payments to hospitals are used in a variety of ways, as Smith notes:

“Yeah; and before we get to feeling too sorry for the hospitals, all of the ones I know of claiming to go broke have a crane in front of them building onto their Emergency Room. …

So, I don’t know: again, the hospitals that are complaining about this, they are buying out physician practices, they’re buying out competitors. They seem to have a whole lot of money. They’re not suffering. Now, what they have done is used the situation you described–the legitimate non-payer–they’ve used that as a propaganda tool, I would argue, to develop a justification for cost shifting where they charge us all a whole lot more to make up for all the money that they’re losing. But they really need a lot of this red ink to maintain the fiction of their not-for-profit status.”

Non-profit hospitals are also entirely tax-exempt (income and property taxes), despite the fact that many use their “free cash flows” in ways similar to for-profit hospitals. The following describes a 2015 court ruling in New Jersey:

“The judge stated ‘If it is true that all non-profit hospitals operate like the hospital in this case… then for purposes of the property tax exemption, modern non-profit hospitals are essentially legal fictions.’ Judge Bianco found that the hospital ‘operated and used the property for a profit-making purpose’ by, in part, providing substantial loans, capital, and subsidies to for-profit entities, including physician groups.“

The bad incentives go beyond all this. Smith adds the following:

“Waste in a big hospital system is actually encouraged, many times because hospitals are paid based on what they use…. So, to the extent that the hospital uses a lot of supplies, that typically raises and increases the amount of revenue that they receive.”

Hospitals have been shielded from competition for years by the government. As Chris Pope explains, hospital pricing is designed “to accommodate rather than to constrain the growth of hospital costs“. This encourages hospitals that are inefficient in terms of costs, quality of care, and over-investment in equipment. Conversely, duplicated facilities and equipment simply add costs and don’t encourage competition given the cost-plus nature of hospital pricing and government efforts to prevent entry by more efficient operators. These restrictions include “Certificates of Need” for new entrants, and the ban on physician-owned hospitals in the Affordable Care Act (ACA). At the same time, the ACA encouraged hospital consolidation by rewarding the formation of so-called Accountable Care Organizations, which are basically exempt from anti-trust review. In the end, any reductions in administrative costs that consolidation might offer are swamped by the anti-consumer force of monopoly power.

Mandated Transparency?

The lack of price transparency really isn’t the root problem, in my view, but it is undesirable. Can government action to create transparency foster a more competitive market for the services hospitals offer? A recent Trump Administration Executive Order would require that hospitals publicly post prices for 300 “shoppable” services or procedures. The effective date of this order was recently delayed by a year, to January 2021. Hospital trade groups have challenged the order in court on the grounds that the First Amendment protects private businesses from being compelled to reveal details of privately-negotiated deals for complex services. While I try to be a faithful defender of constitutional rights, I find this defense rather cynicical. I’m not sure the First Amendment was intended to aid in concealing dishonest schemes for private benefit at the expense of taxpayers and consumers.

Avik Roy likes the price transparency rule. It would require the posting of gross charges for procedures as well as specific negotiated prices. The executive order would also require Medicare to pay no more to hospital-owned clinics than to independent clinics for the same procedure, which is laudable. Roy is sanguine about the ability of these rules to bring more competition to the market. He predicts a more level playing field for small insurers in negotiating discounts, and he thinks the order would spur development of on-line tools to assist consumers.

John C. Goodman is mildly skeptical of the benefits of a transparency mandate (also see here). Consumers with decent levels of coverage aren’t terribly motivated to make hospital price comparisons, especially if it means a delay in treatment. Also, Goodman points out a few ways in which hospitals try to “game” transparency requirements that already exist. John Cochrane worries about gaming of the rules as well. Competition and price discipline are better prescriptions for price transparency and might be better addressed by eliminating the incentives for third-party payment arrangements, like the unbalanced tax deductibility of health insurance premiums, but that kind of reform isn’t on the horizon. Goodman concedes that many procedures are “shoppable”, and he does not minimize the extent to which pricing varies within local hospital markets.

Conclusion

The most insane thing about hospital revenue generation is its reliance on fictitious losses. And hospitals, profit and non-profit, have a tendency to spend excess cash in ways that fuel additional growth in cost and prices. Sadly, beyond their opacity, hospital prices do not reflect the true value of the resources used by those institutions.

In my view, the value of price transparency does not hinge on whether the average health care consumer is sensitive to hospital prices, but on whether the marginal consumer is sensitive. That includes those willing to pay for services out-of-pocket, such as those who seek care at the Surgery Center of Oklahoma. Third-party payers lacking significant market power would undoubtedly prefer to have more information on pricing as well. Mandated price transparency won’t fix all of the dysfunctions in the delivery and payment for health care. That would require more substantial free-market reforms to the insurance and health care industries, which ideally would involve replacing price subsidies with direct payments to the uninsured. The transparency mandate itself might or might not intrude on domains over which privacy is protected by the Constitution, a question that has already been brought before the courts. Nonetheless, transparency would lead to better market information for all participants, which might help rationalize pricing and encourage competitive forces.

Bad Idea: Campaign Finance Reform

25 Friday Jan 2019

Posted by pnoetx in Campaign Finance, Free Speech

≈ Leave a comment

Tags

501(c) Organizations, Campaign Finance Reform, Citizens United, Dark Money, David Harsanyi, Disclosure Requirements, Federal Election Commission, First Amendment, Free Speech, Glenn Reynolds, Independent Expenditure Committees, Jeffrey Milyo, Nancy Pelosi, Revolving Door Tax, Ron Paul, Social Welfare Organizations, Super PACs, Term Limits

Everyone seems to hate money in politics, and nearly everyone says campaign finance reform is needed to eliminate political corruption… nearly. Money in politics is blamed for allowing powerful interests to “buy” seats in the legislature, or in executive positions, as well as “tit-for-tat” influence over pieces of legislation. But not so fast: attempts at campaign finance regulation in the past have been largely unsuccessful in achieving their goals. Furthermore, campaign finance reforms may have perverse consequences, which I’ll discuss below. More importantly, while “taking money out of politics” sounds noble to many, it starkly implies abrogation of First Amendment rights. Far from “leveling the playing field”, there is a great danger that it would lead to suppression of minority opinions. For those reasons. it’s better to consider other means of ensuring that elected officials behave even-handedly in attending to their duties.

Protected Speech

Former Congressman Ron Paul is highly skeptical that any good can come of campaign finance legislation:

“…campaign finance reform legislation does not limit the influence of powerful special interests. Instead, it violates the First Amendment and burdens those seeking real change in government.”

Here is David Harsanyi on the same point:

“Reducing the power of ‘special interests’ in Washington is always a popular issue with voters. The problem, of course, is that every voter considers another group a special interest. … specific campaign finance reform legislation is always about inhibiting someone’s speech.”

Government attempts to curb speech are bad enough, but there is also interest in subsidizing speech arising from certain quarters. Harsanyi is rightly critical of a House bill that proposes to do just that, and Nancy Pelosi has promised to bring the bill to the floor. Among other things, it would authorize a 6-to-1 federal match of small-dollar campaign donations so as to promote “grass-roots” electoral efforts. It is quite simply a bad idea to create a mechanism whereby government bureaucrats can manipulate campaign funding, potentially favoring certain kinds of speech, via the explicit use of funds from taxpayers who might well blanche at the thought of funding certain campaigns.

The bill would also impose new disclosure requirements on large contributions to 501(c)(4) organizations, which qualify as “social welfare” groups under the tax code, and whose “primary” purpose is not campaign-related. To this he says:

“… this obsession with eliminating anonymity is also a transparent attempt to chill speech and undermine minority opinions.”

Let’s face it: to complain about the use of money in promoting speech is to complain about speech itself. We can all speak out loud, but one can’t hope to spread a message broadly without bringing resources to bear on the effort. That’s true whether you are printing, broadcasting, or spreading messages on social media. It almost always takes staff, including creative talent, equipment, media buying power, and usually office space. If you don’t have the requisite resources then you must hustle, press flesh, cajole members of the media, and join with other like-minded individuals, especially those who might agree to commit resources.

Barring a monopoly on speech, choosing a particular scale at which speech becomes unacceptable is itself a denial of the right to free speech. And that right can be exercised by individuals and by associations of individuals. As to the latter, the form of association makes no difference: the union, nonprofit, and for-profit corporate forms are all valid associations through which individuals can speak as one, just as all for-profit media corporations have always exercised their First Amendment rights. That was the Supreme Court’s ruling in Citizen’s United vs. Federal Election Commission (FEC) in 2009, which remains oddly controversial. Again, if you think the ability to speak from a large platform is too much, then you are also willing to restrict speech by for-profit newspapers and television networks, and you are a tyrant.

Money and Electoral Success

In any case, virtually all campaign contributions originating in the for-profit corporate sector come from employee political action committees (PACs), not from corporations themselves. And since Citizen’s United, there’s been little uptick in campaign contributions from for-profit corporations. In fact, according to this report on campaign finance, unions have been much more aggressive than businesses in leveraging the Citizen’s United decision. The report also demonstrates the unsurprising fact that incumbents tend to spend much more on elections than their challengers. However, the authors note that across incumbents, greater spending is associated with lower vote shares, while the reverse is true across challengers. That just means, however, that incumbents must spend a lot to defeat a serious challenger.

Jeffrey Milyo made the last point more than 15 years ago:

“Most systematic studies, however, find no effect of marginal campaign spending on the electoral success of candidates … How can this be so? The best explanation to date is that competent candidates are adept at both convincing contributors to give money and convincing voters to give their vote. Consequently, the finding that campaign spending and electoral success are highly correlated exaggerates the importance of money to a candidate’s chances of winning.”

There is also a lack of evidence that politicians trade their votes for campaign contributions:

“… donors tend to give to like-minded candidates. Of course, if candidates choose their policy positions in anticipation of a subsequent payoff in campaign contributions, there would be no real distinction between accepting bribes and accepting contributions from like-minded voters. However, studies of legislative behavior indicate that the most important determinants of an incumbent’s voting record are constituent interests, party, and personal ideology.”

A tremendous disparity exists between public perceptions of the importance of money in political campaigns and the actual magnitude of campaign spending. Again, from Milyo:

“If campaign contributions do not buy favors, then why is so much money spent on politics? In fact, scholars of American politics have long noted how little is spent on politics. Consider that large firms spend ten times as much on lobbying as their employees spend on campaign contributions through PACs, as individuals, or in the form of unregulated contributions to political parties (i.e., soft money).”

Milyo’s article was written well before the Citizen’s United decision. At the time it was still illegal for corporations to make campaign contributions, but that seems to have made little difference.

In an Appeals Court decision in 2010, Independent Expenditure Committees (Super PACs) won the right to accept contributions from corporations and individuals beyond federal limits. Super PACs, however, are technically prohibited from coordinating their activities with political candidates for federal office. In fact, Super PACs have been known at times to work at cross-purposes to the political parties whose candidates they generally favor. Furthermore, there is very little evidence that corporate contributions provide more than a small share of Super PAC funds, not even via “dark money” contributions via 501(c) organizations.

Futile Reforms

Ron Paul (linked above) notes that powerful interests will always find ways to support policies by which they stand to profit. Those interests often benefit from regulatory policies that create burdens for smaller competitors, spending programs that bring fat government contracts, and subsidies in support of favored activities or technologies. However, restricting campaign finance is a particularly troubling and ineffective approach to combating these efforts. As Milyo says:

“The consensus among academic researchers is that money is far less important in determining either election or policy outcomes than conventional wisdom holds it to be. Consequently, the benefits of campaign finance reforms have also been exaggerated.”

Beyond the lack of evidence that reform is needed, Milyo argues that restrictions on campaign contributions may have nasty unintended consequences. First, cross-sectional studies across states have shown that limits on contributions lead to less electoral competition and lower voter turnout. Second, less campaign advertising reduces interest and awareness of candidate positions among voters, also suppressing turnout. Finally, there is a real danger that incumbents can manipulate reform legislation in order to create electoral barriers to potential challengers.

Alternatives

There may be better ways to reduce the influence of moneyed interests on policy than campaign finance reforms. Term limits obviously shorten the duration of the incumbent advantage as well as corrupt actions by any office-holder who is somehow “bought and paid-for”. Most Libertarians favor term limits to reduce corruption and encourage the kinds of “citizen legislators” idealized by the nation’s founders. Others make an opposing argument that it is our electoral duty to remove legislators from office at the ballot box, and therefore term limits were left out of the Constitution for good reason. Still others say that term limits might make corrupt politicians too keen to act quickly.

Another idea is based on the “revolving door tax” often mentioned by Glenn Reynolds. Not infrequently, government bureaucrats are offered lucrative positions with firms whom they regulate, or they take on these firms as private clients once they leave government. Needless to say, this creates perverse incentives for self-interested public servants. Reynolds suggests an additional tax on subsequent income earned after accepting such an offer. Extending the idea to politicians would mean an additional tax on income earned by any former office-holder accepting work for a firm or industry specifically targeted for benefits under legislation they sponsored during their term. There is much detail to be fleshed out, but the idea is fascinating.

Conclusion

Campaign finance reform is futile: there will always be creative ways around it, so it generally doesn’t reap rewards. Campaign funding itself is rather ineffectual at the margin in generating electoral gains. Moreover, campaign finance reform is an endeavor that is almost guaranteed to run afoul of our First Amendment protections of free speech. In addition, the result may a reversion to a less-informed and less interested electorate, lower voter turnout, as well as manipulation of the reform process itself.

Right-To-Work Prop A: Freedom of Speech, Association and Contract

30 Monday Jul 2018

Posted by pnoetx in Labor Markets, Right to Work, Unions

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Andrew Wilson, Daniel J. Mitchell, Fifth Amendment, First Amendment, Fourteenth Amendment, Freedom of Association, Freedom of Contract, Freedom of Speech, Missouri 2018 Proposition A, Monopsony, Political Action Committees, Right to Work, Show-Me Institute, Steve Spillman, Union Activism, Union Dues

I’d be angry if my employer forced me to contribute to the company’s Political Action Committee (PAC), and that view is shared by many of my colleagues. It would be illegal, of course, at least as a condition of employment. I love my job, but I give nothing to the PAC because I do not trust it to properly represent my political preferences. That goes for political contributions and lobbying activity that might benefit the company and, by extension, my own economic interests. I simply do not believe the company will refrain from corporatist practices, and I do not under any circumstances want my contributions lavished on politicians with whom I have policy differences.

In my home state of Missouri, unions and their political allies insist that union dues payments should be a condition of employment in unionized workplaces. Like PACs, unions are major political contributors, and I’d be surprised if there weren’t a large number of union members who object to the use of their dues for political contributions and activism. Of course, most of that activism is broadly anti-capitalist. This, quite simply, constitutes compelled speech and is a violation of employees’ First Amendment free-speech rights. Forced membership is a violation of the worker’s freedom of association under the Fourteenth Amendment.

Unions are also presumed to represent the interests of workers in negotiating with management, but not everyone wants that representation, especially given the corruption that has often plagued unions over the years and the poor economic performance of unionized industries in general. That last statement applies to public employee unions no less than private sector unions. Prohibiting non-union workers from employment at a unionized firm violates their freedom of contract under the Fifth and Fourteenth Amendments. I agree, however, that an employee refusing to join a union should not automatically be entitled to the wages and benefits negotiated by the union in collective bargaining with the employer. That should be strictly between the non-union employee and the firm.

Missouri Proposition A, which is on the state’s August 7 ballot, is a referendum on a right-to-work (RtW) law already passed by the general assembly and signed by the governor last year. I’ve discussed reasons why some libertarians have expressed disagreement with this kind of legislation—primarily because it denies an employer the right to hire workers exclusively from a unionized pool of labor. As Daniel J. Mitchell has noted, right-to-work laws are a second-best, compensatory solution to other forms of government intervention in labor markets that essentially grant unions monopsony privileges. Furthermore, giving primacy to an employer’s right to deal exclusively with a union ignores the rights of non-union workers and the rights of union members who do not wish to contribute to a union’s political activities. Trampling on the latter stands in contrast to the established protection of my rights against coerced contributions to my employer’s PAC.

The standard economic argument in favor of RtW laws hinges on the favorability of a state’s business environment and its competitiveness with other states. Andrew Wilson explains how and why Prop A will create jobs in Missouri. He notes that over the ten years ending in 2014:

“…average job growth in the 22 states with RTW laws in place for most or all of that time was more than twice as fast (at 9.1 percent) as in the 28 forced-union states. The RTW states also had considerably faster growth in personal income (at 54.7 percent compared to 43.5 percent) and a much stronger economic growth (50.7 percent compared to 38.0 percent).”

Wilson also remarks on a historical phenomenon which pro-union forces refuse to acknowledge: unions have undermined the competitive position of the industries upon which their members rely. It’s a classic principal-agent problem. Workers appoint an agent for representation, but the agent acts independently to maximize its own gains, often at the expense of the workers. RtW applies discipline to the process, reinforcing the union’s incentive to put members’ interests above of its own. After all, nearly all employers have to compete for workers, and private employers have to compete in product markets. Union workers have been exempt from competition only to the extent that their wage demands have not undermined the business’ competitive position, but they frequently have.

The real rub, according to RtW opponents, is that business interests will simply “crush” unions under RtW and impose lower wages and poor work conditions on workers. But as I alluded above, there are employers that prefer to work with a union for a variety of reasons. Second, suppose that new employees of a unionized firm refuse to join the union, or that some union members opt out. That’s a pretty strong indication that union membership is an unattractive proposition. Whose fault is that?

I favor Proposition A because workers should not be forced to accept representation by any third party, firms should not be forced to hire exclusively from those willing to do so, and because workers should not be required to contribute to union political initiatives. But as Steve Spellman writes, unions could do much to enhance their value to both workers and firms, attracting membership and gaining advantages in bargaining with employers:

“If unions focused on providing helpful, outsourced H.R. functions to companies, such as worker recruitment, drug screening and taking care of all that labor-law-compliance paperwork, it would sure change their reputation. As would standing up for its members, while also taking necessary (and fair) disciplinary actions instead of covering up for the occasional bad apple (even if that is only one worker out of 1,000). … If we can dream a little here, unions could also be best positioned to stand up for workers who are discriminated against, for whatever reason, rather than waiting on the law to catch up with our evolving society.”