To suppress coronavirus misinformation, Twitter began more strictly applying its rules to heads-of-state during the pandemic. Platforms’ aggressive efforts to counter misinformation reset expectations for how they should treat government leaders. In January, Twitter suspended then-President Donald Trump for allegedly inciting violence at the Capitol. Demonstrating that the new rules apply universally, Twitter recently removed a threatening tweet by Nigerian President Muhammadu Buhari. Nigeria responded by blocking access to Twitter and demanding it create a local subsidiary, an approach to social media regulation seemingly borrowed from Turkey. Widespread adoption of the Turkish model will imperil internet freedom everywhere.
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Supreme Court Gives Good Guidance on Voting Rights
This morning, the Supreme Court, in what for this term was an unusual “ideological” split of the six “conservatives” versus the three “liberals,” upheld two Arizona election regulations: its out-of-precinct policy, which doesn’t count provisional ballots cast in person outside a voter’s designated precinct, and its ballot-collection law, which allows only certain people (essentially family, postmen and election officials) to handle someone else’s completed early ballot. The question was whether these rules complied with Section 2 of the Voting Rights Act, which proscribes racial disenfranchisement.
The case is Brnovich v. Democratic National Committee, in which Cato filed an amicus brief not to take a position on the particular policies, but urging the Court to give much-needed guidance on Section 2 vote-denial claims. (Here’s an essay that Stacy Hanson and I wrote to summarize our arguments.)
Justice Samuel Alito wrote for the majority and explained that the “core” of Section 2 is “the requirement that voting be ‘equally open.’ ” The provision also requires “consideration of ‘the totality of the circumstances,’ ” of which some of the important factors are: (1) how much of a burden a voting rule imposes, acknowledging that “[m]ere inconvenience cannot be enough to demonstrate a violation”; (2) the extent to which a voting rule departs from what standard practice was in 1982, when Section 2 was last amended (and when we didn’t have in-person early voting, no-excuse absentee voting was rare, etc.); (3) the size of disparities in a rule’s effect on members of different racial or ethnic groups, accepting that the “mere fact there is some disparity in impact does not necessarily mean that a system is not equally open”; (4) the opportunities to vote that a state provides as a whole, so “where a State provides multiple ways to vote, any burden … cannot be evaluated without also taking into account the other available means”; and (5) the strength of the state’s interest, including in making it easy to vote but hard to cheat.
That seems like a pretty obvious framework for evaluating these sorts of cases, but it’s actually the first time the Court has set out anything like it outside the context of vote-dilution litigation surrounding redistricting. Still, this was a straightforward case that should’ve garnered no dissents: restrictions on ballot-harvesting and requirements to vote in one’s precinct are commonplace rules and certainly among the “usual burdens of voting,” as our legal understandings have long reflected.
Of course, in our polarized times, that’s not to be, so we have hyperbolic claims about how the Court is subverting democracy. But if you read Brnovich carefully, you see that what the majority is saying is that you have to show race-based vote denial to sustain a claim for race-based vote denial. That reinforces the Voting Rights Act while respecting our democratic structures — and it also throws cold water on the Justice Department’s lawsuit against Georgia’s recent electoral reforms, which is a political exercise attacking mythical voter suppression.
For more background and to read Cato’s brief, see here.
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New Bill Prevents Forced Departure of Documented Dreamers
Today, Rep. Deborah Ross (D‑NC) with Rep. Mariannette Miller-Meeks (R‑IA), Rep. Raja Krishnamoorthi (D‑IL), and Rep. Young Kim (R‑CA) introduced America’s CHILDREN Act. This important bill would make a vast improvement to the legal immigration system. It would guarantee that nearly all children who came to the United States as minors in legal, temporary statuses would receive the opportunity to apply for permanent residence. These young immigrants are often among the most talented people in the United States today, and letting documented dreamers live and work permanently will create tens of billions of dollars in economic growth for the United States.
Many of these so-called “documented dreamers” enter the United States as minor children whose parents are skilled workers on temporary visas like the H‑1B work visa. The minor children receive an H‑4 dependent visa. Employers can sponsor their parents for green cards, but the extensive green card backlog often forces them to wait many years to receive permanent residence. If the child turns 21 before their parent can qualify for a green card under the green card caps, the child loses both their H‑4 status and their eligibility for derivative permanent residence through their parents’ application.
This phenomenon known as “aging out” forces tens of thousands of documented dreamers to become undocumented, leave the country in which they came of age, or find a series of temporary statuses they can hop from (such as becoming an international student), an expensive and fraught option. If they can stay as students and graduate, they will have to enter the H‑1B lottery themselves. Then, even if they get lucky and win the lottery, their employer must sponsor them for a green card. Even then, they will enter the green card queue behind everyone else—despite already waiting many years as dependents on their parent’s application.
Their situation effectively parallels the situation of undocumented dreamers, except undocumented dreamers have a program that allows them to have a quasi-legal status and employment authorization through DACA, while documented dreamers are excluded. The bill attempts to rectify that inequity and keep these talented people in the United States.
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Walking the Tightrope: U.S. Extended Deterrence in Northeast Asia Under President Biden
The following is an excerpt from an article I wrote on extended deterrence in Northeast Asia under the Biden administration. The Stimson Center’s China Foreign Policy Project published the article on June 30, 2021.
Effective extended deterrence requires careful consideration of U.S. strategic goals in Northeast Asia. Developments in the region will put pressure on U.S. President Joseph Biden and his administration to strengthen extended deterrence to allies. Still, an approach that sets unachievable expectations and misinterprets the drivers of nuclear escalation could inflame arms races and damage strategic stability.
Walking the tightrope of effective extended deterrence will require the Biden administration to think carefully about how conventional military strategies can generate or attenuate the danger of nuclear escalation. As Northeast Asian states, friend and foe alike, rapidly improve their military firepower, the goal of preventing nuclear attack will increasingly depend on how states plan and posture for conventional war.
The rest of the article can be found on the Stimson Center’s website: https://www.stimson.org/2021/walking-the-tightrope-u-s-extended-deterrence-in-northeast-asia-under-president-biden/.
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Interview in La Repubblica: “It is Time for a New Islamic Enlightenment”
On June 29, the Italian national newspaper La Repubblica published an interview with me by the prominent Italian journalist Giancarlo Bosetti. The main theme was my new book, Reopening Muslim Minds: A Return to Reason, Freedom, and Tolerance.
I said what Muslims need to “return” to is the universalist spirit of their golden age:
My argument is that the Islamic world was magnificent and creative because it was cosmopolitan, because Muslims were open-minded for their times; they didn’t shy away from learning Greek philosophy, or from other pre-existing traditions – the Christians, the Jews, the Hindus, etc. Essentially, they had this universal vision that there is wisdom within Islam, but also outside of Islam. Also, within Islam, there were sects, there were tensions, conflicts, even civil wars, but there was not a monolithic understanding of Islam imposed by the State. There were Sunnis and Shiites, proto-Sunnis and Shiites, and there were different schools of thought. We lost that cosmopolitanism, and Islamic thought gradually stagnated.
Bosetti also asked me if I were too “optimistic” about the future of the Muslim world. I said:
If somebody was sent back to 17th century Europe, to announce that the continent is bound to become a beacon of tolerance, where everybody will be free and respected, Catholics and Protestants will stop slaughtering each other, where even Jews will be fine, wouldn’t he or she be dismissed as an incurable optimist? When John Locke wrote his A Letter Concerning Toleration, it was in fact a radical idea, and certainly not everybody thought that it would be a successful idea. It became a successful idea because people pushed for it. And the same applies now.
Meanwhile I added that a battle for freedom is needed today not just in Islam, but also the West:
What is important though, is to keep freedom alive in the West as well. Because if freedom becomes compromised in the West, if authoritarian populists seeking to crush the independent media gain power, or if racism spreads and Muslims are not tolerated, what kind of examples will be able to point out to as sources for inspiration? That is why I think we need a battle for freedom within Islam today and at the same time we need one within the Western world, too.
You can read the whole interview, in English, here.
And you can read the Italian version in La Repubblica here.
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State Bars Can’t Force Lawyers to Fund Political Speech
Daniel Crowe and Lawrence Peterson are lawyers in Oregon who are compelled to pay dues to the state bar association if they wish to practice law in the state. The annual dues vary based on membership classification and run from $617 for full dues‐paying members to $150 for retired members.
The Oregon State Bar Association is very politically active. For example, in its Bar Bulletin, it called for limitations “to address speech that incites violence” and criticized a Trump Administration executive order on immigration. The Oregon State Bar has also made many other negative comments about the Trump administration, including an assertion that its base of support was rooted in white nationalism.
Crowe and Peterson are forced to partially fund the bar association’s political activities through their bar dues. Given the choice, they would not have voluntarily paid for such activities because they disagree with many of the bar’s positions. So they sued the Oregon State Bar to be released from the compelled‐membership and compelled‐dues requirements.
The First Amendment not only protects the freedom to speak, it also protects the freedom not to speak and not to be forced to subsidize speech. Moreover, in 2018, the Supreme Court decided Janus v. AFSCME, holding that the First Amendment prohibits mandatory public‐sector union fees for non‐member employees. That decision called into question two earlier decisions, Lathrop and Keller, which upheld compelled‐dues bar associations.
Crowe and Peterson lost their free speech challenge at the district court and the Ninth Circuit because Keller was not expressly overruled by Janus. The Ninth Circuit concluded that Keller allows states to compel attorneys to fund a bar association’s “germane” political and ideological speech.
Now on petition to the Supreme Court, Crowe and Peterson ask the Court to rectify the obvious inconsistencies between Janus and Keller and hold that compelled‐dues bar associations are as unconstitutional as compelled‐dues public‐sector unions. Cato has joined the Pacific Legal Foundation and the Atlantic Legal Foundation on an amicus brief urging the Supreme Court to take the case.
We argue that bar associations across the country routinely engage in blatantly political activities, including taking positions on gun control, environmentalism, abortion, and much more. Using mandatory dues to fund those activities implicates deep First Amendment concerns. Janus was an important decision about compelled speech, and its logic applies equally to ideologically driven bar associations. The Court should take Crowe and Peterson’s case and reaffirm the principles of Janus.
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Law vs. Liberty in Hong Kong: The National Security Act One Year Later
In the late hours of June 30, 2020, the Standing Committee of the National People’s Congress (NPC), China’s rubber-stamp parliament, passed “The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region.” The National Security Law (NSL) was enacted without consulting Hong Kong, and its details were kept secret until the official text was released.
The Pretense of National Security
China justified the NSL—which criminalizes acts of secession, subversion, terrorism, and collusion with foreign forces—on the pretense of protecting national security. But the real purpose is to maintain the Chinese Communist Party’s monopoly on power by restricting basic human rights, particularly freedom of the press.
President Xi Jinping places “stability” above freedom. He has argued that “Freedom is the purpose of order, and order the guarantee of freedom.” While there is some truth to his statement, the real meaning is that China’s ruling elite will not tolerate dissent. Individuals may be free to communicate ideas, but only those consistent with “socialist principles.” This dictum is made clear in Article 51 of the PRC Constitution, which states: “Citizens of the People’s Republic of China, in exercising their freedoms and rights, may not infringe upon the interests of the State, of society or of the collective.”
Freedom and Order: A Liberal View
Xi’s view of the relationship between freedom and order is in stark contrast to that of classical liberals for whom liberty is the essential means to an emergent or spontaneous order, not the purpose of order. As James M. Buchanan has argued, “The ‘order’ of the market emerges only from the process of voluntary exchange among the participating individuals.”
And as F. A. Hayek emphasized, the spontaneous order of the market depends on a free-market price system, private property rights, and limited government under a just rule of law:
Under the enforcement of universal rules of just conduct, protecting a recognizable private domain of individuals, a spontaneous order of human activities of much greater complexity will form itself than could ever be produced by deliberate arrangement, and in consequence the coercive activities of government should be limited to the enforcement of such rules.
The spontaneous order of the marketplace would not be possible without a free market for ideas and the protection of persons and property.