California Threatens Free Speech with AB-2943


Proposed legislation, AB-2943, making its way through the California legislature, is the latest example of why east coast folks see California as the land of fruit and nuts. Humor aside, it is also why diverse groups such as Orthodox Christians, libertarians, and conservatives fear the radicalism of the Left and are concerned about fundamental values of speech and expression. Trends often start in California and this threat to free speech is most disturbing.

The proposed legislation seeks to modify the state’s law related to unlawful business practices. The current version of the statute is not that much different from most states’ Unlawful Trade Practice Acts. It prohibits a seller from making misrepresentations about goods offered for sale. For example, a seller could not claim that a certain toothbrush is endorsed by the American Dental Association when that is not the case.

AB-2943 seeks to insert provisions prohibiting “Advertising, offering to engage in, or engaging in sexual orientation change efforts with an individual.” Under the proposed statute, “’Sexual orientation change efforts’ means any practices that seek to change an individual’s sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.” The statute also contains lengthy findings that change therapy is a bad thing and can hurt people.

Putting aside policy arguments on whether conversion therapy good, bad, etc., it is very likely that this statute will have a much broader application. Under state case law, “the language used in a statute or constitutional provision should be given its ordinary meaning, and ‘[i]f the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute).” People v. Valencia, 3 Cal. 5th 347, 357, 397 P.3d 936, 944 (2017), reh’g denied (Aug. 30, 2017)

Under the plain meaning rule as described in Valencia, this statute would prohibit a bookstore from selling a book in which a Christian author urges people to repent of sexual immorality, which he identifies as including homosexuality and to take their strength in the sacrificial love of Christ. Such a position is orthodox Christian teaching. (See e.g., Romans 1:24-26) But it also advocating an effort “to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex”—an activity that would be prohibited by AB-2943. Must such a book be removed from the shelves of all California bookstores?

Proponents of the bill might point out that “the words of the statute must be construed in context, keeping in mind the statutory purpose.” Valencia, 397 P.3d at 944. And that the purpose here is not to ban the selling of Christian books but has as its target therapists and other such professionals running programs seeking to turn gay people into straight people. Maybe. But that’s not what the words of the statute say. And it would be naïve to assume that a judge hostile to Christian teaching and sympathetic to the gender identity revolution currently in vogue could resist the opportunity to use the plain meaning approach to push forward a favored agenda and silence the voices of those with whom he disagrees.

Bottom line: a state unfair trade practices statute is a very poor choice to use to wage war on conversion therapy. The drafters should have created a separate statutory scheme. But more importantly, the plain and ordinary meaning of the words used in the statute will likely lead to the banning of books offering orthodox Christian teaching on human sexuality. We can hope that the courts would strike such a statute as a violation of the First Amendment. They should. But fidelity to the law has proved to be a fickle thing in these last few years and we ought not to assume anything.

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William J. Watkins, Jr. is a research fellow at the Independent Institute and the author of the book, Crossroads for Liberty: Recovering the Anti-Federalist Values of America’s First Constitution.

FDA Restricts Sale of Contraceptive Device


Earlier this month, the U.S. Food and Drug Administration released an order indicating its intent to restrict the sale of the contraceptive device Essure, the only FDA-approved nonsurgical permanent birth control method.

Essure is extremely effective, over 99 percent successful, and popular. As of July 2017, over 750,000 devices have been sold worldwide.

The use of Essure requires the insertion of a small coil device into the patient’s fallopian tube, preventing sperm from reaching the egg. Because it doesn’t require surgery, the procedure avoids the risks associated with tubal litigation (commonly referred to as “getting your tubes tied”) and other surgical methods to avoid pregnancy.

The primary motive behind the FDA’s involvement is concern that patients using Essure are not sufficiently informed about its risks. In the words of FDA Commissioner Scott Gottlieb, “We’ve been closely evaluating new information on the use of Essure, and based on our review of a growing body of evidence, we believe this product requires additional, meaningful safeguards to ensure women are able to make informed decisions about risk when considering this option.”

Using any form of contraception contains some element of risk. But asking how to manage these risks also entails asking who should manage the risks. The “who” question is particularly important considering this is not the FDA’s first effort to manage Essure.

Gottlieb also noted, “Despite previous efforts [by the FDA] to alert women to the potential complications of Essure, we know that some patients still aren’t receiving this important information. That is simply unacceptable. Every single woman receiving this device should fully understand the associated risks.”

What were these previous efforts? An incomplete list includes multiple versions of warning labels, patient brochures, and a doctor-patient checklist used before distribution. Although these efforts are well intended, a similar event in recent history casts doubts that the FDA will effectively manage the risk of using Essure.

Accutane was approved by the FDA in 1982 to treat a difficult, often painful, form of acne. Although hailed as a “breakthrough” and a “miracle drug,” Accutane was also risky. Primarily, Accutane was extremely dangerous for fetal development if a female patient became pregnant while using it. Similar to Essure, the FDA was concerned that physicians distributing Accutane were not adequately informing their patients about the risks of treatment and it got more involved.

Since 2002, the FDA has designed and implemented two separate programs to educate patients about the risks associated with taking Accutane and to regulate the drug’s distribution. These programs also involved brochures, warning labels, and checklists among other more invasive measures to educate and prevent patient pregnancies.

The FDA’s efforts have failed. If anything, they have made using Accutane more dangerous!

As I noted in a paper I wrote for the Journal of Institutional Economics, the FDA’s programs severely restricted patient access, were largely ineffective in educating patients, and worked to alienate the physician from the patient. The result was an increase in patient pregnancies under the FDA’s programs compared to before the agency’s programs.

Managing risky drugs and medical procedures is difficult and has serious implications if mismanaged. Given the FDA’s recent history of mishandling Accutane, and how it seems to be handling Essure similarly, it might be best for the FDA not to get involved. It might be too risky.

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Raymond J. March is a Research Fellow at the Independent Institute and Assistant Professor of Economics at San Jose State University.

The Other Money Heist


Sometimes fiction offers better lessons in political economy than reality. “Money Heist,” the Spanish TV series that is having a big global impact thanks to Netflix, gives us a very important one (no, I won’t spoil it).

The Premise: “The Professor” directs a gang of robbers who assault the Royal Mint of Spain in order to print 2.4 billion euros and hopefully take off with the money. His argument: we are not stealing from anyone because we are printing new notes, just as the central bank does today by creating euros out of thin air. The European Central Bank (just like the U.S. Federal Reserve) channels the newly created money to the banks. The only difference is that the robbers, all of whom have mountains of problems, want it for themselves.

All the monetary analysts of the world would not be able to instill in people such a powerful idea about what central banks have done since the beginning of the financial crisis. Although the Professor uses a cynical argument to justify the gang’s actions, there is a tacit lesson here: governments have indirectly been robbing people for years by creating money artificially under the cover of political sophisms that make it hard for folks to understand that they are the victims.

U.S. War Making: What’s in It for You?


If you are an American, have you asked yourself these questions?

1. What purpose of mine is served by the U.S. government’s making war in Iraq?
2. What purpose of mine is served by the U.S. government’s making war in Afghanistan?
3. What purpose of mine is served by the U.S. government’s making war in Syria?

4. What purpose of mine is served by the U.S. government’s making war in Yemen?
5. What purpose of mine is served by the U.S. government’s making war in Africa?
6. What purpose of mine would be served by the U.S. government’s making war in Iran?

Unless you are an unusual American, and if you are honest, your answer in each case would be, No purpose of mine is served by such war making.

Yet U.S. forces continue to make war in Iraq, Afghanistan, Syria, Yemen, and Africa with no prospect of discontinuation in sight, and the probability is substantial that U.S. forces will attack Iran and that U.S. actions in Syria will provoke direct fighting with the Russians supporting the Assad regime—fighting that might spiral out of control and eventuate in nuclear war. Why?

Well, although relatively few Americans have any real interest served by these wars, a small minority does have an interest. The leading figures in this power elite are Zionists and politicos beholden to the Israel lobby, plus some people who thrive on any and all wars by virtue of their positions in the military-industrial-congressional complex.

Chances are that these people are complete strangers to you. Their only connection with you is (a) to profit from funds extracted from you by the government, and (b) to keep you ideologically befuddled and factually misinformed so that you will not cause any major difficulty for them in their conduct of perpetual war. But aside from these two connections, nothing connects the great majority of Americans with the warfare state. It essentially runs on its own, answering to no one outside its own precincts and thriving on a pipeline to the taxpayers’ bank accounts.

You pay for all of this endless death and destruction, average American, but you get less than nothing out of it. In short, you are a sap for evil and designing intriguers. If you are reflexively “supporting the troops,” you might want to reconsider playing the fool and having your intelligence insulted daily in the process.

 

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Robert Higgs is Senior Fellow in Political Economy at the Independent Institute and Editor at Large of The Independent Review. His latest book is Taking A Stand: Reflections on Life, Liberty, and the Economy.

Think Twice about Bringing Back U.S. Manufacturing Jobs


We hear a lot of lamentations about the loss of American jobs in manufacturing (notwithstanding that U.S. manufacturing output has never been greater). People purport to want to bring back jobs in factories. I’m not sure a lot of thought goes into these views.

I have some personal experience in factory employment, although it was long ago—in the golden age of such employment, some might say. For five summers while I was going to high school and college during the academic years of the late 1950s and early 1960s, I worked in a factory—four summers in a box factory and one summer in an ice plant. The work was physically hard and highly repetitive under unpleasant physical conditions of high heat (at the box factory) or extreme cold (at the ice plant).

I was glad to have these jobs, however, because the wage rates were the highest of any to be had in my godforsaken little town. But at the time I was 15-20 years old and as strong as a young bull. I longed for the overtime hours, which paid a 50 percent wage premium. My record for weekly hours worked was 92 at the ice plant one midsummer week during a frenzy in the cantaloupe packing season. (In those days the melons were packed in wooden crates—remember the box factory—and loaded into railroad boxcars that were then sprayed with crushed ice to keep the contents cold during their transport to markets all around the USA.) I wanted to earn as much as possible to help me get through the school years without continuing to work full-time. For a stretch of three months I could take the punishment.

But would I have wanted to continue doing this work indefinitely? Not on your life. Indeed, it was no coincidence that nearly all the workers in these factories were young men like me, few of them more than 30 years old. It’s definitely not an old man’s game; it’s not even a middle-aged man’s game. Those who long to bring back factory employment, I strongly suspect, have not given much thought to the nature of such work. It wears men and women down, making them old before their time. One of the great benefits of economic development is that such employment becomes a steadily less prominent part of total employment.

(For a priceless account, funny yet sad at the same time, of work in the Michigan auto plants, read Ben Hamper’s Rivethead.)

 

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Robert Higgs is Senior Fellow in Political Economy at the Independent Institute and Editor at Large of The Independent Review. His latest book is Taking A Stand: Reflections on Life, Liberty, and the Economy.

Review: Ready Player One Entertains Using Fear of Tech Oligarchy


Ready Player One seems destined to become another Steven Spielberg classic, serving up a movie that appeals to a wide range of audiences with a solid story, well-crafted characters and engaging adventure from beginning to end. Along the way, viewers also get a good dose of ethics, with an emphasis on empowering the individual over a centralized authority.

Based on co-screenwriter Ernest Cline’s original novel of the same name, Ready Player One takes place in Columbus, Ohio in a dystopian near future (2045). (Columbus seems to be getting a lot of play in dystopia these days; see Tracy Lawson’s very libertarian sci-fi Counteract action series of young adult novels.) The world is ravaged by overpopulation. Unemployment and underemployment are widespread. Mobile homes are built on top of each other, creating vertical slums called “stacks.” The imagery is striking, creating desolate landscape that anyone would want to escape. Audiences are immediately drawn into a video gaming aesthetic that complements the plot.

In order to escape their bleak existence, most citizens living in the stacks spend their days and evenings in a virtual reality world called OASIS (Ontologically Anthropocentric Sensory Immersive Simulation) where they can play out their personal fantasies.

Statism’s First Casualty Is the Truthful Use of Language


Senator Hiram Johnson is credited with having said during World War I, “The first casualty, when war comes, is truth,” and this observation has been made in more or less the same words many times, both before and since Johnson made his statement. No doubt the declaration is true, but it is true in a much broader context as well. States engage not only in conquest, plunder, and oppression, but also—in order to create conditions in which the populace is rendered less likely to resist a state’s abuses or rebel against it—in pervasive bamboozlement. Those who support the state ideologically tend to engage in chronic misrepresentation of what the state does and how it does it. So, not only war—the characteristic state action—but statism in general makes truth the first casualty of its claims, proposals, programs, and projects.

Consider some common examples. Foreign sellers don’t “dump” goods in U.S. markets; they sell them at prices American buyers find attractive. Immigrants and refugees don’t “invade” the USA; they cross the border and, unless obstructed by state agents, proceed into the country peacefully. After a hurricane or other natural emergency, local sellers don’t “price gouge”; they sell, as usual, at prices that reflect the currently prevailing conditions of demand and supply. Government make-work programs don’t “create jobs”; they hire people for politically determined activities while, owing to the programs’ financing by taxation, reducing the number of people hired for activities valued directly or indirectly by consumers. The Transportation Security Agency does not provide “security” for airline passengers; it provides security theater while greatly diminishing the passengers’ convenience and ease of travel—and probably their true security as well.

In sum, behind virtually every government claim, proposal, program, or project, we find a misuse of language. Government goes hand in hand with calling actions what they are not, often the opposite of what they really are. We would do well to bear in mind Nietzsche’s sweeping declaration: “Whatever the State saith is a lie.” Often it is not a plain and simple lie, but one that springs from twisting language into a grotesque misrepresentation of reality.

 

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Robert Higgs is Senior Fellow in Political Economy at the Independent Institute and Editor at Large of The Independent Review. His latest book is Taking A Stand: Reflections on Life, Liberty, and the Economy.

FDA Cracks Down on Online Eye-Exam Company


This past October, the Food and Drug Administration issued a warning letter to Opternative, a company specializing in providing online eye-exams. The FDA has now made its letter public and set up a meeting with Opternative in July to make sure the company is in regulatory compliance.

The crux of the letter is that the FDA considers theses eye exams to be a Class 2 device, which requires premarket approval. Because the agency considers any device “intended for use in the diagnosis of disease or other conditions or in the cure, mitigation, treatment, or prevention of disease, or to affect the structure or any function of the body” to be approved as a Class 2 device, it considers Opernative to be shirting around the required approval process.

Opternative, whose product is currently approved as a Class 1 device, argued that because it provides only refracted eye exams, which lack the comprehensiveness of an eye exam performed by an optometrist, additional regulatory approval was unnecessary.

The FDA’s action is likely in response to an open letter filed by the American Optometrist Association last April. Unsurprisingly, the trade group is in strong support of the regulator’s crackdown. AOA President Christopher Quinn recently wrote in a statement, “The FDA’s enforcement action against Opternative is major victory for public health and for the tens of millions of Americans who need and deserve access to quality care to safeguard their health and vision.” He continues, “It is our hope that we are a step closer to holding all companies that would place profits ahead of patient care fully accountable for their actions.”

The FDA Plans to Regulate Nicotine in Cigarettes


In an unprecedented effort, the Food and Drug Administration is working to significantly reduce nicotine levels in cigarettes. In one policy scenario, the FDA would set a limit of 0.4 milligrams of nicotine per gram of tobacco, reducing the typical nicotine level by 97 percent.

Their goal is clear: get current smokers to quit and deter future generations from getting hooked. Smoking is deadly, causing over 480,000 preventable deaths per year. It is also financially taxing, resulting in nearly $170 billion in direct medical cost costs annually.

While the amount of death and steep medical costs are concerning, good intentions do not always result in good outcomes. Several questions come to mind when assessing the FDA’s recent efforts. Among them are: How would changing nicotine levels change the incentives of smokers? Perhaps more importantly, how successful has the FDA been in the past in promoting public health?

Efforts to regulate vices frequently produce unintended, and harmful, consequences. For example, regulations placed on physicians and consumers to prevent opioid abuse often drive patients to seek dangerous illicit alternatives to manage their pain or cope with their addiction. Heroin is a common choice. For the FDA to prevent harmful consequences of their actions, reducing nicotine in cigarettes would be a start at best. What about all the other tobacco products smokers may turn to?

Making a Statement on Gun Control


In the wake of last month’s school shooting at Marjory Stoneman Douglas High School in Parkland, Fla., which resulted in 17 students and teachers being killed and another 17 injured, gun-control activists, frustrated with their relative failure to enact sweeping bans and restrictions on firearms ownership, resorted to scapegoating the National Rifle Association and its supporters, and launching a social media campaign to pressure companies that offer certain services, discounts, or other perks to NRA members to sever their relationships with the organization.

Many have even absurdly claimed that the organization, devoted to preserving individuals’ inherent and constitutionally protected right to self-defense, was a “terrorist organization,” and that it had “blood on its hands,” because one disturbed young man used a gun to cause a horrendous tragedy (notwithstanding numerous opportunities and failures of federal and local government authorities to intervene, and possibly prevent such an attack). Moreover, despite the media hysteria and predictable drumbeat for more gun control surrounding each and every school shooting, the number of kids getting shot and killed in schools has actually declined significantly since the 1990s, as have crimes rates (including gun crimes) generally.

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