### Preserving The President's Free Speech Rights

So I’ve long been skeptical about the 1st ammendment right not to be blocked on twitter by Donald Trump. It seemed to me th
e fact he was president and even talked about official policies in his tweets in no way meant his actions on his twitter account were taking in his public capacity. As Prof. Volokh points out in the link it’s is common for presidents to discuss policy, promise governmental action and even announce new programs during their stump speeches which are clearly and unequivocally understood to be made in their capacity as private individuals.

But Prof. Volokh finally convinced me on this point by observing that Trump uses white house staff to manage and post on his twitter account in ways that would be illegal if it was a political or even purely personal concern.

Nicely, this means we don’t have to worry that it will become impossible for government officials to campaign via social media. Donald Trump can have @RealDonaldTrump as his personal twitter but he then has to run it out of Trump tower or his political staff and not the white house (though he will probably be far too lazy to do that).

More broadly, rather than the harms I feared would come from either treating all presidential social media as official or unofficial we get an incentive for politicians to more carefully separate their official and personal roles.

#### Blocking of Twitter Users from @RealDonaldTrump Violates First Amendment

President Trump has been blocking some Twitter users from his @RealDonaldTrump account, apparently because of their viewpoints. (The President apparently stipulated, in this lawsuit, that “[s]hortly after the Individual Plaintiffs posted the tweets …

## Social Control and The Principle Agent Problem

### The Chinese Example And The Dangers Of Restricting Free Speech

This interesting post reminded me of my suspicion that a lot of the censorship in China isn’t the result of Xi Jinping’s crazed desire to be repressive. Almost certainly Xi would benefit from far less censorship and may indeed benefit from reports in the media exposing misbehavior by low level party officials but the incentives of those with the power to control expression (both to show off their loyalty and hide embarrassing events) means that far more censorship gets implemented than Xi would ideally want.

I think this is an important lesson for those who want to limit our free speech (or academic freedoms) when it comes to issues of race, gender harassment and the like. Even though the speech that one intends to ban may not have much value and impose great harms one needs to keep in mind the risks posed in delegating the practical authority to determine what speech qualifies.

## Ethereum Eschatology and Bitcoin Bankruptcy

### Regulatory Arbitrage and Governmental Support For Cryptocurrency Alternatives

So I’ve been thinking a bit about cryptocurrencies lately and I don’t think the future is very promising for Bitcoin, Ethereum and other pure cryptocurrencies. I’ve always been a big fan of these currencies (though don’t get me started on the idiocy of companies using blockchain everywhere) but I think they are doomed in the not to distant future. However, this is only because I am convinced it won’t be long before we have the option to realize all (or at least most of) the major benefits of cryptocurrencies without the kludge and overhead of the blockchain, the dangerous price volatility and the unreliability/general sleaziness of many cryptocurrency exchanges.

Now lots of cryptocurrency value is currently the result of pure speculative interest. People are making a big bet that Bitcoin or Ethereum will take off and surge in value. While I highly recommend this Last Week Tonight episode mocking the HODL gang and other idiocy in cryptocurrency investing it’s not a fundamentally unreasonable bet. Just an extremely high risk bet that eventually non-speculators1 will buy out the speculators at well above (enough balance the risk) the current market price. It’s a bet that the currency will prove to be (at least) so useful/desirable that normal economic actors will see fit to hold far more value in the cryptocurrency than it’s current market capitalization of $151 billion BTC/$63 billion ETH. Given that $5 trillion is being held in physical currency and$60 trillion is held in bank accounts if you think there is a decent chance that Bitcoin or Ethereum will be adopted as the global currency then it’s valuation might not be absurd.

However, let’s ask what it is that cryptocurrencies offer the non-speculator. It seems to me there are several attributes that make them desirable.

1. Cryptocurrencies offer finality in payments, e.g., unlike credit cards you don’t need to worry the payment you received will be cancelled by the payor or reversed as fraudulent.
2. Cryptocurrencies let you pay people who wouldn’t (or can’t be bothered) be get paypal merchant accounts or US bank accounts.
3. Relative freedom from government monitoring.
4. Smart contracts. I can enter into cryptocurrency contracts that are enforced regardless of what a court thinks and even if local law enforcement is non-existent.
5. Cryptocurrency schemes don’t require any kind of trust in government currency or a government system.

Frankly, 5 isn’t a serious consideration. It matters to a few people who want to show off their crypto-anarchists credentials but generally having a central bank behind one’s money is an advantage (stability etc..). So much so that other cryptocurrencies are trying to build in similar systems. If your concern is a hedge against inflation or governmental collapse you are better buying gold which a desperate government can’t try and attack (a combination legal and technical attack by a motivated government would seriously threaten any cryptocurrency). Besides, you can still use it if the internet fails.

But notice that, excepting 5, really all these advantages are really just avoidance of regulation. I don’t think there would be much demand for cryptocurrencies if it was legal to make a version of paypal where payments were completely final (even if they later turned out to be fraudulent), all records of transfers were immediately deleted, no one was turned away (marijuana growers, people in countries with sanctions and even conmen all got to keep their accounts) and the government couldn’t easily monitor accounts or determine whose account was whose.

Now some of this is just about enabling illegal activity (which also has value insofar as it lets individuals replace organized crime in the drug trade) however, strange as it might seem there is really substantial value in monetary exchanges with less protections against fraud and theft. In high-trust, relatively low value transactions in countries with strong legal systems such protections are a bonus but they make it virtually impossible to do make deals in low trust situations or when the seller can’t absorb a loss. For instance, as a tourist I couldn’t buy a high value good (say a found meteorite) from a villager I encounter because even if he could accept credit card payments he doesn’t have the means to contest a claim of fraud I might later make so, without cash, we can’t reach a mutually beneficial deal.

What puts current cryptocurrencies at risk is the fact that at any point any of the hundreds of sovereign governments on Earth could choose to offer an alternative digital payment system capturing most of these benefits. At any time Montenegro could sit down with Goldman-Sachs and some IT guys and launch Montenegro digital cash. Individuals from around the world could open up numbered accounts on the MontCash website and transfer money in or out of these accounts using credit cards or bank transfers. The MontCash app (or api) would then function exactly as paypal does today except that it would have numbered accounts (instead or as well as accounts in individual names), wouldn’t allow chargebacks or canceled transactions (absent a final court judgement) or require troublesome certifications to accept money at scale. In other words MontCash would just be a trusted bookkeeper maintaining a list of account balances.

Of course, diplomatic pressure would ensure that no government offered a completely untraceable totally anonymous system like this but for 99% of users it would be just as good (indeed better in some respects than Bitcoin’s publicly trackable transactions) if MontCash only released the accounts linked to certain payments, deposits etc.. only in response to a subpeona/warrant or for use in terrorism cases. While many governments might not particularly like the fact that accounts are simply numbered and can be used by whoever has the right credentials if it appears that real cryptocurrencies are gaining serious adoption (as necessary to vindicate their current valuation) then a system like MontCash would start to seem like an appealing alternative. After all, unlike Bitcoin, MontCash would still allow accounts to be seized with valid court orders, be more convenient to subpoena for transfers to/from given credit cards/bank accounts than the fluctuating legion of cryptocurrency exchanges and, most importantly, offer the carrot of secret counterterrorism access. After all, 99% of users wouldn’t care that much if the NSA/GCHQ etc.. got some degree of secret access to the financial data feed provided it wasn’t shared with tax collectors or drug dealers while the counterterrorism/intel benefits of having not only all transactions and accounts used to purchase or sell MontCash but also log details of where the app/api was used on what kind of device etc.. would be invaluable.

Even though it might not be universally loved the potential for massive profit by whichever country decides to give this a go is a very strong incentive. Not only could they collect a tiny percent of each transaction but they would earn huge amounts of interest on their total deposits. Also, they would have a compelling reason to allow numbered accounts not associated with any individual since they would get to keep all funds in such accounts when the owner losses their password (or cryptographic key or whatever). It’s hard to imagine that no country would take up this opportunity if they already see a true cryptocurrency gaining legitimacy. A system like MontCash would be far more attractive to most normal users as it could offer accounts denominated in various stable currencies (dollars, Euros etc..), greater user friendliness and more flexibility (you could potentially set daily transaction limits for your account, give up some degree of anonymity for password recovery options etc..) not to mention solving the long transaction times and high overhead costs (paid for in fees rewarded to miners) in cryptocurrencies.

In short, it’s hard to imagine that cryptocurrencies will win the day when for everyone but the hardcore technoanarchist their needs can be better met by a system that governments would see as less bad and can bring into being at any time.

1. It’s not possible to maintain a rate of return substantially outpacing global economic growth indefinitely and eventually even the most irrational speculators will realize the good times are over and either liquidate their investments to speculate elsewhere or store their value in a safe asset. If, at this point, there isn’t sufficient non-speculative investment in the cryptocurrency to support it’s price the price will crash as speculators race to sell.

## Don’t Make Drug Companies Police Usage

Is this a ridiculous amount of opiates for a single small town to prescribe. Sure thing. But I find the idea that drug companies being held to task for this, and thus implicitly the idea that they should have done something to supply fewer pills to these pharmacies deeply troubling.

I mean how would that work out? The drug companies are (rightly) legally barred from seeing patient records and deciding who does and doesn’t deserve prescriptions so all they could do is cut off the receiving pharmacies. Ok, so they could put pressure on the pharmacies to fill less prescriptions but the pharmacies also don’t have patient records so what that means is the pharmacies scrutinize you to see if you ‘look’ like someone who is abusing the prescription or a ‘real’ patient. So basically being a minority or otherwise not looking like what the pharmacist expects a real pain patient to look like means you can’t get your medicine. Worse, the people scamming pills will be willing to use whatever tricks are necessary (faking pain, shaving their head whatever) to elicit scripts so it’s the legitimate users who are most likely to end up out in the cold.

While I also have reservations about the DEA intimidating doctors into not prescribing needed medicine it is the government (who, I understand, is informed about the number of opiates being sold by various pharmacies) who should be investigating cases like this not the drug maker. Personally I think the solution isn’t and never has been controlling the supply but always about providing sufficient resources like methadone and bupenorphine maintenance so people who find themselves hooked can live normal lives.

#### Drug companies submerged WV in opioids: One town of 3,000 got 21 million pills

Drug companies hosed tiny towns in West Virginia with a deluge of addictive and deadly opioid pills over the last decade, according to an ongoing investigation by the House Energy and Commerce Committee. For instance, drug companies collectively poured 20.8 million hydrocodone and oxycodone pills into the small city of Williamson, West Virginia, between 2006 and 2016, according to a set of letters the committee released Tuesday.

## Is The Foreign Corrupt Practices Act Appropriate?

### Do We Really Respect A Nation's Soverignty When We Decide How Their Laws Should Be Understood And Enforced?

I’m rarely one to agree with Trump and disagree with Tyler Cowen but I’m inclined to think we should eliminate the Foreign Corrupt Practices Act rather than merely implement the minor changes he suggests. At a gut level I find the idea that we are imposing our norms about how law, public office etc.. should work on other countries unpalatable and at a more cerebral level feel that we shouldn’t put people in prison or even fine companies without a compelling reason to think it serves some important social good. My mind could be changed by substantial evidence this law improves the welfare in other countries but there is no apriori reason to think it will reduce, rather than increase, corruption overseas (e.g. the game theoretic aspects to providing insurance to the bribe taker that the bribe giver can’t turn them in).

If the question was whether we should help overwhelmed countries who find their anti-corruption efforts foiled by American companies wealth and global nature that would be a different matter and I support assigning DOJ resources to assist worthy local corruption prosecutions. I’d even favor a law which allowed the foreign government to request prosecution by a US court for bribery actions taken by US companies when they felt their own courts weren’t capable of doing the job. However, this law doesn’t leave the question of prosecution and appropriate sanctions to the jurisdiction where the crime took place but substitutes our American sensibilities about the badness of bribery and even the role of laws regarding bribery for local understanding.

One might object that this law is only triggered when the practice at hand is illegal under local law. That’s true, but all laws don’t mean the same thing. Imagine the UK had a law which imposed massive fines or a 10 year penalty for any UK citizen living in the states who intentionally ‘evaded’ local tax laws. Now it’s true that in the States we too regard many types of tax fraud as a bid deal….but there is a societal acceptance (perhaps a bad one) that evading state sales tax by ordering products from out of state isn’t a big deal the way cheating on income tax might be and any US enforcement of such laws will reflect that understanding but UK enforcement of a hypothetical foreign tax evasion law would not. Similar points could be made about laws with harsh penalties for consuming illegal drugs in a foreign country….often, as with decriminalization, what the laws on a country’s books say and how the society there understands the system to work don’t always agree.

In short, respecting the sovereignty1 of other states requires letting them decide on the relation between their explicitly codified law and actual enforcement/social understanding and the framework for this law seems to coopt that understanding.

Also, it’s not even clear if the net effect of this law will be to reduce bribery and corruption abroad. If, as might be expected, in corrupt countries foreign companies tend to be less corrupt than the locals the net effect of such a law might be to favor local companies that face no deterrence from the US government. As the structure of the law punishes bribes paid by US companies or the corporations they control or hire but not bribes paid by customers or local companies engaged in arms length transactions it creates an incentive for the most corrupt locals to start businesses they wouldn’t have otherwise2. Indeed, the very fact that a socially accepted system of bribery imposes a barrier that keeps US firms out of the market may even make public corruption reforms unpopular for protectionist reasons.

Finally, one needs to ask what the game theoretic effect is of a law. A really effective way to clamp down on bribery is to turn people who have given bribes into witnesses against the official (e.g. by offering them immunity in this or another case or even a reward) and often the bribe taker will be in far more jeopardy than the bribe giver potentially putting them at jeopardy of blackmail. However, add the potential for charges by the US government which the local prosecutor can’t bargain away but are unlikely to be brought at all as long as no one local rats and you have a very nice game theoretic mechanism of ensuring that your bribe giver doesn’t rat you out (threaten to report any company that bribed you to the US DOJ if you get convicted…might even be a good way of ensuring someone pays for your defense).

Whether or not any of these actually work out in the real world is anyone’s guess but that fact alone should be enough justification not to be (even potentially) handing out 20 year prison sentences. That is in addition to all the other problems of the law that Cowen notes.

#### How to Root Out Corruption Without Introducing More

Are you worried there may be corruption in the American executive branch today, yet also fearful that the tools for rooting out such malfeasance may be abused? If so, welcome to the dilemmas surrounding the Foreign Corrupt Practices Act.

1. Now ultimately, of course, I only believe in respect for the sovereignty of countries (or the right of self-determination) because it’s a good heuristic for positive results but it’s a pretty damn good one. Not only do attempts to intervene in foreign cultures rarely work they tend to create a good deal or resentment against whoever does the intervention. This is true whether the intervention is a direct political one or merely a cultural one such as refusing to do business in the customary way in that place and the FCPA certainly raises that possibility. Even disregarding resentment when it comes to legal regimes there is a much stronger reason to respect sovereignty: penalties imposed by a foreign potentate rarely provoke compliance or respect so drag along all the harms of law enforcement plus without the social benefits that make those costs worth paying.
2. For instance, maybe a certain degree of bribery is expected to win contracts to supply the government with services and all local companies bidding simply pay the expected bribes. If US suppliers simply entered the market and complied with these necessary rules for doing business locally there would be little effect on corruption. On the other hand if they refuse but offer superior products at better prices there is a strong incentive for those locals who are best at greasing palms to set up a company which simply subcontracts the work to the Americans after bribing the government (without telling the Americans about the bribe) and since such a company is literally in the business of bribing and faces competitors in that buisness it is more likely to increase local corruption than if the US company had simply played along.

## Keep Executing The Innocent

### 4% Innocent Executions Is A Price Worth Paying For A Spotlight On Injustice

Since 4% of death row inmates are innocent we should keep the theoretical death penalty. I don’t want to execute anyone and ideally everyone on death row dies of old age before being executed but it’s only because of the death penalty that we have so much information about and public interest in the failings of our criminal justice system. I think that it’s only as a result of safeguards introduced because of worries about incorrect executions (DNA retesting) or fixes to forensic or legal failings that we don’t have more innocent people spending huge fractions of their lives in prison.

I don’t think being executed is much worse than life in a US prison. Given a choice between a coin flip between going free and being executed and the certainty of life in prison I’d take the coin flip. Hell, I’d take 9:1 odds. Other people’s preferences differ but I find it hard to believe that the death penalty is more than 10 times as bad as life in prison (and this is clouded by our irrationally strong drive to survive rather than a pure utility judgement) and a very small percentage of all convicts get the death penalty.

Without the death penalty there won’t be any ‘oh shit, was that guy innocent’ moment or double checks before execution. At any point the justice system will just delay or avoid reconsidering any issues and without the spotlight presented by arguments of innocence made by death penalty convicts people will just assume what’s easy to believe: our criminal justice system gets it right and the innocent are rarely convicted. If the price to pay for this is just 4% incorrect executions I think it’s worth paying.

Of course, it should be noted that the rate of innocent people being convicted will be much higher outside of death penalty cases. Inmates on death row had cases that not only went to trial but received far more scrutiny than even those non-death penalty cases that do go to trial. Personally, I wouldn’t be surprised if the true rate of people in prison for crimes they didn’t commit was as high as 10-20%

#### Study suggests that 4% of the people we put on death row are innocent

How well does the US justice system work? Given that many states still carry out the death penalty, it’s a rather significant question. Some biostatisticians have teamed up with lawyers in an attempt to provide a scientific answer to the question. Based on their figures, at least 4.1 percent of the individuals sentenced to death will eventually be exonerated.

Category: Law

## Legalizing Baby Sales

### Don't We Want More Happy Parents, Healthier Pregnancies and Genetically Advantaged Children?

Julia Galef has more from her wonderful unpopular ideas series. This one covers unpopular ideas about children and reproduction. There’s a lot of interesting ideas in there but the one I found most appealing, though unfortunately pretty unlikely to be adopted, was the suggestion that we should allow parents to ‘sell’ their newborns.

There are some obvious problems with allowing people to do this in the third world. In traditional subsistence farming contexts children may offer a net economic gain to a family particularly if given only minimal accommodations. No one wants to return to the halcyon days when we hired children out as indentured servants where unsympathetic farmers would `raise’ them in Dickensian conditions. However, in the developed world even the most neglected child is still a net economic cost so we can safely assume no one will be buying children to have someone they can extract work from without the guilt of mistreating their own offspring.

Such a policy would help many loving couples find children to adopt and I even believe there is a real benefit to removing children from the care of anyone so uninterested in them (or convinced they are unfit) that they are willing to make such a sale1.

But won’t this just result in drug addicts and other unfit parents popping out babies left and right for a bit of cash? Well maybe some college profs with oxy addictions might but babies to fund their habit but those babies would be in demand from parents who will offer them a good home (and unlike alcohol there is no analogous fetal opiate, meth or even crack syndrome). However, I suspect (but haven’t been able to find statistics on this) that the children born to street addicts already have plenty of problems finding adoptive parents. Moreover, pregnancy is a long, difficult process that its safe to assume anyone who finds it worthwhile to grow babies for sale is offering a high-value baby (good genes and health) who will be placed in a comfortable living situation.

What about the idea that it would incentivize women to choose the couple willing to pay the most for the child rather than the best family? First, I’m skeptical of the ability of birth mothers, given the lack of truly extensive interactions and their limited control over the process have any particular ability to pick good parents. Indeed, I suspect that the ability and willingness of the adopting family to pay would actually be a better indicator of the child’s future welfare than any gut level instinct. Second, when a birth mother decides between two potential families wanting to adopt the families who weren’t selected presumably still go on to adopt someone making this whole matter a wash from a social welfare perspective.

Basically, selling babies isn’t really any different than the surrogacy arrangements we are already comfortable allowing except that it no longer incentivizes people to only pretend to be willing to give the child up or to squeeze more money from the deal with a last minute change of heart. Where surrogacy arrangements incentivize the pregnant woman to divert money intended to increase the child’s health to their own pockets baby sales incentivize offering documented high quality care to maximize sale value.

Really, the only downside I can really see is just how obvious it will make our racial preferences in children. White babies will be worth way more than black ones.

1. In developed countries there is little reason to fear that more people would be extorted to sell their children if the practiced was legalized. One might imagine that in war torn parts of the world a market in children would give warlords the bright idea of forcing women to sell their children and give them the money. In the first world the only pressure on a woman to sell is the crappy circumstances she would be in whether or not baby sales were legal and if that induces her to make a sale I suspect everyone will be better off as a result, particularly the child.

## Lawsuit Demanding Students Be Barred From Accessing Offensive Content

### Do We Really Want To Stop Victims of Harrasment From Learning What's Being Said About THem?

I pretty much agree with everything Prof. Volokh says in this post but I would add that is is particularly disturbing and dangerous that these claims not only made it to the lawsuit stage but also that sufficiently many people in the Feminist Majority Foundation (not mainstream but not tinfoil hat nutters) thought this was worth pursuing.

Sure, demanding censorship of mean, hurtful and demeaning comments about your group or identity isn’t anything to write home about. However, what really sets this situation apart is that the demand wasn’t to punish the anonymous individuals responsible but to stop students from choosing to access an information source because it might allow them to read these awful things.

Demands for censorship in response to hurtful/mean/awful comments is nothing to write home about (from either side of the political aisle) but I think something is particularly distasteful about demanding policies that would allow all the assholes in a 5 mile radius to continue attacking, degrading, spreading hurtful gossip about and otherwise making life bad for some women on campus while barring those very women from keeping abreast about what is being said about them so they can refute malicious gossip, take threats to the police and otherwise protect themselves (reputationally and physcially).

Sure, I know those filing the suit no doubt intended to discourage people from posting such hateful and derogatory remarks in the future by eliminating the on campus audience for them. However, this line of argument could equally well be used to deny students access to a contrarian blog (say by a former student) making an extended argument that, because of innate ability differences, the schools affirmative action policy was driving reductions in academic rigor/performance. Even if the students visiting the blog were driven by simple curiosity and desire to evaluate the claims for themselves, if the continued posts were clearly motivated by the blogger’s desire to reach so many students with his message there would be an equally strong argument for barring students from accessing the site. With the predictable result that it would probably only increase the extent to which students agree with those unpopular views (the feeling that a view is being suppressed is far more alluring than poor arguments for it).

In a different context I would be far more charitable. If a private university were being asked to ban the platform I’d still oppose the suggestion but it wouldn’t really be fair to suggest the proponents would be responsible for denying victims a chance to (easily) make themselves aware of attacks against them so they can respond. After all, the advocates would be presumably be suggesting that in the particular case the benefits would outweigh the costs. However, the plaintiffs were asking the courts, an institution designed to apply predicatable precedent not case specific balancing, to rule that such an outcome was required. As such I do think its fair to point out the plaintiffs are asking for a rule which, in many of its applications, would deny the victims warning and an ability to respond without substantially reducing the torrent of hate and insults.

The fact that this resulted in a full court case with published opinion makes me worry that the argument was either plausible enough that reasonable lawyers thought it had a chance of prevailing or, perhaps more likely, those advancing the suit felt the risk of enduring such a lawsuit would discourage universities from being quite so protective of free speech in the future. Particularly so for private universities who aren’t bound by any need to comply with the first amendment.

#### Opinion | Court rejects Feminist Majority Foundation’s demand that public university block access to Yik Yak

University of Mary Washington had no obligation to “ban Yik Yak from the campus wireless network ,” because such a ban “may have exposed the university to liability under the First Amendment” (and in any case wasn’t required by Title IX or the equal protection clause.

## The Troubling Issue Of Masterpiece Cakes

### Masterpiece Cakeshop Is In The Wrong But Anti-Discrimination Laws Based On Orientation May Be The Long Run Danger

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is the Supreme Court case about the religious baker who refused to sell any wedding cake for a gay wedding and is now challenging the Colorado anti-discrimination laws that bar him from doing this on both free speech grounds and religious liberty grounds.

#### Legal Considerations

The religious liberty challenge is pretty weak (both as a moral and legal matter). Essentially, the owner of Masterpiece Cakeshop is arguing that he shouldn’t have to comply with the same laws that everyone else does just because his religion disagrees. It used to be the case that in some situations the Supreme Court recognized a first amendment right to an exception to generally applicable laws when they conflicted with religious belief. However, in Employment Division v. Smith Scalia got rid of this nonsense. As long as a law is generally applicable and isn’t motivated by religious animus the fact that it requires you violate your religious beliefs is immaterial1. As a result Masterpiece Cakeshop really doesn’t have a leg to stand on as far as the free exercise claim goes.

The free speech arguments are a bit more hefty. There is a long ling of cases that hold the first amendment bars the government from compelling you to express views you disagree with. For instance, in Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston the Supreme Court held that the first amendment protected the right of march organizers to exclude groups from their demonstration (despite contrary anti-discrimination law) when it would compromise their message, e.g., you can’t force a march against homosexuality to allow gay groups to join or a white supremacist march to include blacks. In other cases the court has held that the government can’t force students to pledge allegiance, newspapers to carry political responses for balance or PG&E to include environmental fliers in its bills.

As such, if Masterpiece Cakeshop was about the baker refusing to decorate the cake with a message they disagreed with I’m inclined to think there is a plausible argument to be made. If Masterpiece Cakeshop was willing to sell blank or generic wedding cakes to gay couples getting married there would be a strong case that requiring them to distribute messages on the cakes that they find objectionable is analogous to requiring PG&E to distribute environmental fliers it disagrees with. However, that’s not the fact patter in this case. Masterpiece Cakeshop is refusing to sell any wedding cake for a homosexual wedding.

Now there have been some heroic attempts to argue that merely providing any wedding cake at all conveys a celebratory message. However, this argument just isn’t very plausible. Certainly, wedding cakes are used as part of an event which, as a whole, sends a celebratory message but so too are the plates, silverware and chairs used at such functions. Surely no one thinks that a vendor who rents chairs for events is somehow being compelled to speak (in the way the Supreme Court has deemed unacceptable) when the law requires they deliver chairs to both gay and straight weddings. Indeed, if we accept the argument that merely because a good sold by a business will be used for an expressive purpose the sale of that good is itself expressive and thus protected from compulsion we would have to conclude that a white supremacist who owned an art supply shop had a first amendment right to refuse to sell pens to blacks as they will be used in an expressive manner (and quite likely to disapprove of white supremacy).

More broadly, there is an expressive component to all business transactions. In some sense serving black customers at a dinner expresses approval of their presence in the same dinner as whites. However, this isn’t the kind of incidental compelled expression the supreme court has identified as deserving of special protection nor should it be. When the government mandates that newspapers carry articles they disagree with the newspaper’s ability to express its desired message is seriously burdened. In contrast, when the government requires business owners to serve customers at a dinner regardless of race or sexual orientation there isn’t the same burden place on the ability of the diner owner to clearly convey his bigotry (modulo certain issues about signs2). If these brief remarks haven’t convinced you on this point I urge you to read this piece.

#### Policy Considerations

Alright, so Masterpiece Cakeshop deserves to lose (and almost surely will lose) at the Supreme Court. Indeed, if SCOTUS found for Masterpiece Cakeshop it would raise serious issues about the continued practical applicability of anti-discrimination laws more broadly. Many of which still address compelling needs.

However, I’m far less convinced there is any similarly compelling need for protecting homosexuals access to public accomodations like bakeries. Don’t get me wrong, I firmly believe that individuals like the owner of Masterpiece Cakeshop are deeply misguided and probably bigots3. However, such individuals are being overwhelmed by the remarkably rapid march towards greater acceptance of homosexuality.

Certainly, there are still pockets of homophobia in the country but by the time laws barring anti-homosexual discrimination in public accommodations can be enacted and have an effect in less progressive states than Colorado there will be more homosexuals than people who support discrimination against homosexuals. I don’t mean to in any way diminish just how hurtful it can be to be discriminated against but we need to balance that hurt against the burden such laws place on our freedoms. The judgement we’ve made in almost all cases is that just because something is hurtful or offensive isn’t a good enough reason to abridge people’s rights to choose whom to sell to. After all, its also quite hurtful to refuse to sell to someone because they are dumb, support abortion, or because their hipster beard looks stupid (though that may be more understandable). Those may not be quite at the same level but refusing to serve any ex-cons is closer as is any number of personal reasons for discrimination one sees in small towns.

The argument that there is a special need for public accommodation laws (as opposed to other instances of hurtful but appropriately legal behavior) stems, in the case of racial discrimination, from the claim that such discrimination is systematic, pervasive and makes it particularly difficult to dissolve bigoted attitudes. These all were, and perhaps would be again absent such laws, in the case of racial discrimination. It wasn’t just that blacks were excluded from a few venues run by marginalized bigots but systematically barred from whole classes of establishments — particularly high status establishments were power and influence get traded. The systematic exclusion of blacks from these establishments created a particularly formidable barrier to racial understanding and acceptance.

In contrast, homosexuals are only rarely discriminated against in public accommodations (I’m not suggesting that many people don’t remain closeted because of likely bigoted responses from friends and family but this is beyond governmental intervention) and usually have ample alternative venues. Those public accommodations which do discriminate against homosexuals tend to be low status enterprises run by socially marginalized assholes. The penetration of chain stores into virtually all parts of America provides high quality cheap products in a non-discriminatory fashion even in some of the most backwards regions. The opinion poll trend lines prove that even without such laws the cultural shift towards homosexual acceptance is both rapid and unstoppable. In short, virtually all the reasons for thinking that anti-discrimination laws serve a special need whose exceptional importance warrants prioritizing it over the individual freedoms of the business owner don’t seem to apply. Certainly, its awful and morally unacceptable but it doesn’t seem to be different in kind from the other awful morally unacceptable behaviors we don’t outlaw.

I certainly recognize that reasonable people can disagree on the relative value of the freedoms given to business owners as well as the substantial compliance costs, unintended harms and regulatory burdens imposed by anti-discrimination laws. However, the lack of any serious attempt to weigh the costs and benefits of such anti-discrimination laws makes me suspect that people support laws barring discrimination against homosexuals merely to signal their moral disapproval of such discrimination not based on any policy analysis.

Currently, many states as well as the federal government lack laws barring discrimination based on sexual orientation in public accommodation (hiring is a harder question IMO) so given the fact that once an anti-discrimination law is passed it is virtually impossible to ever repeal (for fear of sending the message that discrimination is acceptable) now is the time to sit down and ask whether we really want the kind of laws that lead to Masterpiece Cakeshop. If I could choose to enact such laws for a ten year period I’d probably support them but when I balance 50 or 100 years of reduced freedoms, compliance costs and unintended harms against the rapidly fading benefits I find leaning against such laws.

In short, while Masterpiece Cakeshop is clearly in the wrong from both a moral and legal perspective in the long run I fear that the well-intentioned laws that lead to this case are what we should really fear. If only there was a good way to signal our moral disapproval with sufficient strength without actually creating expensive and invasive new torts and enforcement agencies.

1. Of course, in some circumstances we do feel that religious groups deserve a special break on a generally applicable law such as when the law is merely a matter of enforcing some uniform standard and the costs of allowing sincere religious objection is small. For instance, the purpose of a law stipulating that city employees are barred from wearing any visible clothing besides their uniform isn’t substantially impeded by allowing Jewish employees to wear a kippah (aka yamaka) and the benefit to religious individuals pretty clearly outweighs the additional hassle of having to make individual determinations of appropriateness. Congress and state legislatures have adopted RFRA laws in a (deeply flawed) attempt to ensure that, in those cases where the societal cost is small and the individual benefit large, we make exceptions. Personally, I would prefer a legal regime that was religiously neutral and simply focused on strongly held views and applied a balancing test but that’s another conversation.
2. As Eugene Volokh has pointed out there is a serious tension between free speech rights and anti-discrimination laws which bar vendors from expressing bigoted/sexist messages in their workplace. While being forced to serve blacks doesn’t seriously burden the owner’s freedom of expression being barred from decorating the diner with news clippings praising white supremacy, denigrating blacks and arguing for the racial inferiority of minorities does. However, this is an issue for another time.
3. From afar animus is hard to distinguish from compassionate belief someone is making mistaken life choices combined with a desire not to encourage further mistakes. I honestly believe some very devout catholics who truly treat homosexuality as a mistake just like adultery or premarital sex fall into the second category but such people are rare. Animus is far more common.

## It’s Time To Show Your True Colors

### Do You Care About Protecting Women Or Just About Middle Class Values

It’s time for everyone claiming to support criminal bans on prostitution because they want to protect vulnerable women to choose sides. Are you really concerned about doing what it takes to protect vulnerable women or are you just using that as an excuse to justify your middle class values and your discomfort with the idea of exchanging sex for money?

Time to choose sides since it looks like research based on the (unfortunately brief) accidental Rhode Island experiment in decriminalizing indoor prostitution has some interesting results. Decriminalization resulted in a 50% drop in gonorrhea and a 30% drop in reported rapes (which, given the ability for prostitutes to go to the police without fearing prosecution, should have increased if rapes had stayed the same). Importantly, it appears that even women who weren’t in the prostitution industry saw a decrease in incidence of rape. I’d say these results were surprising except they weren’t to those familiar with the field, indeed, that’s why I’m willing to say this seems like a pretty solid result (maybe not the actual number but the direction of the change).

While no one suggests that the lives of most prostitutes (though the high end ones sometimes do well for themselves) are sweetness and light but sex workers who have experienced decriminalization will usually express strong support for the change and the ways it has changed their lives. However, one could still make an intellectually cogent case for decriminalization creating a real net harm, e.g., suggest that even if it makes the lives of sex workers better it makes more people into sex workers. However, if this research stands up, its just no longer even plausible to claim women are better protected in a regime which results in 30% more rapes. No matter how far you stretch the additional harm of increased numbers of sex workers (though often of a different class which isn’t as vulnerable) it doesn’t go that far.

But I’m pretty pessimistic. While I believe the passionate advocates in this area really do care about the victimization of women (though one can care so much that you are unable to let some go to save more) I don’t think that is what drives criminalization of prostitution at all. Rather, it’s just more of the usual human psycho-sexual drama about the threat which ‘virtuous’ women perceive from prostitution dressed up in new language.

#### The Effects of Decriminalization in Rhode Island

The study itself was a standard difference in differences design. Basically, that means they look at the data on rapes and STDs from both Rhode Island and the rest of the country before the decriminalization and then after the decriminalization. If the difference between Rhode Island and other states changes at the time prostitution is decriminalized then we infer that this difference in differences is a result of the change in legal status at that time. Of course, the actual statistical work is a bit more complex than this and uses data over a number of years but it’s a decent way to estimate the effect in a natural experiment provided one doesn’t believe that some other change singled out Rhode Island at the same time. To further shore up their work they use synthetic controls (basically they find the states which resemble Rhode Island in terms of the pre-decriminalization data and then use those as a control instead of the rest of the US).

Unfortunately, a reason why this study itself is only fairly persuasive and not highly persuasive is that the recriminalization results were not as strong. While rapes did rise again after Rhode Island made prostitution illegal again this result had a p-value of only .2. The story the authors offer is that the fact that this change was widely anticipated might dull the statistical power of the difference-in-differences method. In other words, they are suggesting that maybe the rapes started rising again once everyone realized they were going back to criminalization. I don’t find this very plausible since most mechanisms for this effect I can imagine, particularly including the author’s suggestion that rape is a partial substitute for paid sex, shouldn’t see much change, if any, until prostitution is actually recriminalized.

However, I think this result actually fits very nicely into a different model. In particular, while it may be the case that rape and consensual sexual encounters are partial substitutes I’m pretty skeptical that accounts for the effects here. Its not as if prostitution doesn’t exist when it is illegal or someone willing to rape for sex wouldn’t avail themselves of it. Rather, I suspect there are more general network effects at play here. In the pre-decriminalization world you have a system that relies on a system of pimps, organized crime and other bad actors to operate in which the girls involved may have little control/ownership interests and probably have only a minimal support network among themselves. Decriminalization not only removes this criminal element from the scene it also, as suggested by the health data, draws in a new class of prostitute who has better resources, planning, risk mitigation and isn’t at the mercy of her drug dealing pimp, i.e., more middle class prostitution. Recriminalization appears to have push some people out of the industry but it doesn’t change the fact that the criminal element is no longer present. A prostitute with a regular list of clients, a system for meeting new clients online and who isn’t already enmeshed with the criminal element has little need to return to their clutches even after recriminalization meaning the benefits linger. Sadly, I would guess that in the long term we will see a regression to previous levels as the police work to disrupt the organization and continuing business relationships these women have used to replace pimps and organized crime and eventually people will go back to securing prostitution through this element and rapes will rise.

Luckily, one doesn’t need to believe my analysis (which is just speculation) since one can rely on the fact that the results found for decriminalization are similar to what other studies have found.

No Description

#### The Story Of Decriminalization

The story of how Rhode Island came to decriminalize prostitution is pretty neat so I advise you to read this article. I am not, however, please with the top billing they gave people who in my opinion were nothing but moralizing middle aged women who had never had to make really hard choices using the language of concern for vulnerable women to justify their disapproval.

#### Prostitution decriminalized: Rhode Island’s experiment

Around the world, there’s a growing movement to decriminalize sex work. Last year, Amnesty International, the largest human rights group in the world, came out with a recommendation that governments should decriminalize consensual sex work and develop laws that ensure workers are “protected from harm, exploitation and coercion.”