The Department of Homeland Security (DHS) finalized a regulation today that would ban legal status to immigrants who its officers determine are likely to become “public charges”—that is, wards of the state. DHS claims that the rule will promote self-sufficiency among immigrants, but the goal is a farce. The rule is designed to exclude immigrants regardless of the degree to which they are supporting themselves and contributing positively to the economy. DHS actually made the final rule worse than the proposed rule.

DHS responded to my comments on the proposed rule in its final rule without naming me specifically. My primary complaint was that DHS’s proposed definition of a public charge was anyone who received more than 15 percent of the poverty line in benefits, which entirely ignored the degree to which they supported themselves. On pages 245 and 246, DHS cites and responds to my comment (and others) on this point. DHS writes:

Other commenters stated that a noncitizen family of four making 250 percent of the federal poverty line could be deemed public charges if they received $2.50 per person per day, although such a family would be about 95 percent self-sufficient. A commenter stated that therefore, DHS’s standard to measure self-sufficiency had no rational connection with actual self-sufficiency.

Yet DHS responded to my comment by significantly worsening this issue. DHS writes that because “a lack of self-sufficiency is a single duration-based threshold,” it will now “consider an alien likely to become a public charge at any time in the future if the alien is more likely than not to receive public benefits for longer than 12 months in the aggregate in any 36-month period.” In other words, it doesn’t even matter the value of benefits received anymore. Use alone will trigger a public charge denial.

This means that the government adjudicator could predict that an immigrant will be 99 percent self-sufficient and still ban them. This rule has almost no connection whatsoever to requiring immigrants to support themselves. It is entirely about banning legal immigrants who this administration sees as a threat—socially and economically.

DHS actually defines a dependent of an immigrant as anyone how receives 50 percent of their support from the immigrant. But it defines an immigrant as dependent on the government if they receive any support at all from the government, even as little as 1 percent of their income. 

My second major complaint in my comments was that the model that “DHS’s model of predicting the likelihood of becoming a public charge is nontransparent and inaccurate” and that “DHS should use administrative or survey data to create a statistically valid factor model that predicts the probability of an immigrant becoming a public charge.”

DHS cited my comment (p. 410) but made no adjustments to its rule as a result. DHS’s response essentially ignores the difficulty of its methodology. Specifically, DHS treats multiple negative factors as having greater weight than those factors in isolation, even though I presented evidence that this isn’t true. Once income is known, for example, immigrant high school dropouts aren’t more likely to receive benefits if they don’t speak English. But DHS will count lack of English against the applicant regardless.

DHS’s flawed definition and the flawed methodology ultimately produce a public charge test that is designed to fail. It will result in denials of legal status to immigrants, including spouses of U.S. citizens. That is the goal and the only goal of this methodologically-challenged administration.

Cato has long advocated walling off the welfare state from immigrants, as opposed to walling off the country from them, but the public charge rule inverts this principle: using the prospect that immigrants might use welfare as an excuse to stop immigrants from coming legally. 

The Department of Homeland Security (DHS) finalized a regulation this week that bans “public charges” from receiving legal status in the United States. The public charge rule redefines the historic meaning of this term, which will result in far more immigrants not receiving status in the United States based on a bureaucrat’s suspicions that they could use welfare. The rule is fundamentally flawed and will harm taxpayers, while separating Americans from family members abroad.

What does the public charge statute say?

Section 212(a)(4)(A) of the Immigration and Nationality Act (8 U.S.C. 1182) states, “Any alien who, in the opinion of the consular [or immigration] officer…. is likely at any time to become a public charge is inadmissible.” Someone who is inadmissible cannot receive a visa to travel to the country, be granted admission to it, or receive status in it. This law—which has existed largely in its current form since 1891—does not define “public charge.” Rather, it requires officers to consider at a minimum the person’s age, health, family status, finances, and education or skills.

In addition, the law mandates that family- and employer-sponsored immigrants receive “affidavits of support” from their sponsors in the United States. Affidavits of support are legally enforceable contracts between the U.S. government and the sponsor in which the sponsor agrees to support (and demonstrates support) for the applicant at an income not less than 125 percent of the federal poverty line (in 2019, $32,176 for a family of four) until the immigrant naturalizes to become a U.S. citizen or if the alien has worked 10 years. If the immigrant does receive welfare, the government can sue the sponsor for breach of contract (for at least 10 years) or otherwise seek to collect.

Does the rule or statute ban immigrants from using welfare? 

No. The rule (and statute) bans immigrants from receiving legal status in the United States based on a bureaucrat’s projection that they might become dependent on the government in the future. This may discourage some immigrants from applying for welfare indirectly, but it does not prevent them from doing so. Even if an immigrant has never used welfare at any point in their life, a bureaucrat could still determine that they are likely to become dependent on the government at some time in their life in the future. 

Who does the public charge statute apply to?

The public charge statute primarily applies to noncitizens applying for many types of visas or status in the United States. While technically this includes most types of tourists, guest workers, students, and other temporary visitors, these categories will likely not receive the scrutiny of new permanent residents, as permanent residence grants access to far more benefits than temporary status. In 2017, family-sponsored immigrants made up about 80 percent of the new permanent residents who the public charge statute applies to. They are exclusively parents, spouses, and children of U.S. citizens and legal permanent residents (and their spouses and minor children). The law also covers employer-sponsored immigrants and their spouses and children (15 percent), as well as diversity lottery winners (5 percent). Refugees, asylees, and other immigrants admitted for humanitarian reasons are exempt.

How is the statute currently being interpreted?

In order to clarify the meaning of public charge in the wake of welfare reform, the now-defunct Immigration and Naturalization Service (INS) published a proposed rule in 1999 (and field guidance that immediately implemented it) defining a public charge as someone who is “primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.” Cash benefits include Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and any state or local equivalents. Non-cash benefits—such as food stamps or Medicaid—are not be considered. Even cash benefits receipt would not automatically result in a public charge denial.

How have prior administration enforced the statute?

In the early 1990s, the State Department had adopted a practice of denying a high percentage of immigrant visa applicants on public charge grounds. In 1998, 18 percent of all immigrant visa applicants received an initial public charge denial (13 percent received a final denial after having a chance to overcome it). But the INS definition in 1999 caused the rate to decline to 1 percent or less (from 2002, it reversed many denials in the 1999 to 2001 period). Last year, the State Department updated its guidance requiring that consular officers begin to consider whether receipt of non-cash benefits might predict future cash benefits use. As a result, the initial denial rate spiked to 3 percent of all applicants for the first time in a decade.

What will the Trump administration’s public charge rule change?

1. The definition of public charge will change to use of any means-tested public benefits for more than 12 months in any 36-month period. This definition replaces the “primarily dependent” standard (51 percent of someone’s income) in favor of an absolute amount, disregarding the degree of dependency.
2. The type of benefits considered will now include the likelihood to use both cash and non-cash benefits—federal, state, or local. The most important change here is that Medicaid and food stamps use will count against an applicant. These programs are by far the largest federal means-tested benefits programs. By including them, it increases the likelihood of becoming a public charge nearly tenfold.
3. A new process of estimating someone’s likelihood of being a public charge will be created. The law and current guidance only require that adjudicators consider five factors— age, health, family status, finances, and education or skills. The public charge rule will define these factors more granularly (e.g., English speaking ability counts as a skill) and weight them positively or negatively. The rule would also create heavily weighted negative factors that would generally trigger a denial: 1) no reasonable prospect of future employment, 2) public benefits receipt in the prior 3‑year period, and 3) no health insurance and a medical need. The only heavily weighted positive factor to counteract these is an income of 250 percent of the poverty line.

Why has the public charge rule been criticized?

1. Immigrants are not “likely” to use public benefits. According to DHS’s analysis in the rule itself, “The data shows that the rate of receipt for either cash or non-cash public benefits was approximately 20 percent among the native-born and foreign-born, including noncitizens” in 2013. In other words, 80 percent of immigrants are not receiving public benefits. No matter how DHS slices the data, it could not find any population of immigrants with a propensity greater than 50 percent. DHS defines “likely” in the final rule to mean more than 50% probability to use benefits.
2. The public charge rule ignores immigrant contributions. The rule would exclude people based on a projection that they are likely to use benefits in any future 12 months in any 36-month period. This means that people who make 200 percent of the poverty line could still be deemed a “public charge”/ward of the state, even though they are 95 percent self-sufficient. According to DHS’s analysis, only 14 percent of benefits recipients made an income of less than 125 percent of the poverty line, meaning that this rule will target thousands of applicants who will largely support themselves and contribute economically.
3. The process to identify someone’s likelihood to use benefits is skewed to create denials. DHS’s proposed weighting scheme is scientifically invalid. It proposes a check mark system of positive and negative factors and then will compare the results. Yet it is empirically inaccurate to say that someone who doesn’t speak English and who lacks a high school degree is twice as likely to use benefits as someone who just doesn’t speak English. In fact, English language ability adds nothing at all once education and income is known. Finally, because the rule doesn’t define what it means by “likely” to become a public charge with any statistical exactness (or at all), every adjudicator will determine their own thresholds, resulting in denials when approvals would be appropriate.

What effects will the rule have?

1. Fewer legal immigrants will receive approvals. DHS admits that the rule will have this effect—indeed, it is the purpose of the rule—but it declines to estimate it. The most modest reading of the rule implies that denials for public charge grounds will skyrocket back to the highs of the late 1990s when 13 percent of applicants received final immigrant visa refusals for public charge grounds. In 2018, this would have amounted to about 115,000 legal immigrants.
2. Fewer legal immigrants will come legally to the United States. Banning some immigrants in certain backlogged categories will not necessarily reduce legal immigration because other immigrants will just take their slots. But 58 percent of the immigrants that this rule will affect—spouses, parents, and minor children of adult U.S. citizens—are in categories that have no cap. Greater denials will lower legal immigration to the United States, likely by tens of thousands. DHS acknowledges this fact as well, but fails to estimate it.
3. U.S. citizens will be separated from their spouses and children. Nearly 370,000 immigrants who received permanent residence in the United States in 2017 were spouses or minor children of U.S. citizens. They constitute about 40 percent of all immigrants subject to the public charge rule. When the rule is implemented, they will be at risk of being denied and separated from their U.S. citizen spouses and children. The rule could ban about half of the spouses of U.S. citizens receiving permanent residence, according to an analysis of data on the employment status and incomes of spouses of U.S. citizens by the organization Boundless.

Many colleges have adopted a principle known as “affirmative consent,” which makes it easier to infer misconduct (and thus impose expulsion or other discipline) when a record is lacking in verbal or physical evidence one way or the other as to whether a student’s sexual encounter with another student was consensual. It might seem unthinkable to apply such a standard in criminal law, where the consequences are not expulsion but imprisonment and the burdens of sex offender registration. 

And yet the American Bar Association is expected to vote as early as today on a resolution sponsored by its Commission on Domestic and Sexual Violence (emphasis added):

RESOLVED, That the American Bar Association urges legislatures and courts to define consent in sexual assault cases as the assent of a person who is competent to give consent to engage in a specific act of sexual penetration, oral sex, or sexual contact, to provide that consent is expressed by words or action in the context of all the circumstances, and to reject any requirement that sexual assault victims have a legal burden of verbal or physical resistance.

The italicized phrase might seem ambiguous, but the chair of the responsible commission, in a Thursday email, spelled out what is intended: “consent to sexual activity must be expressed by words or conduct.” No expression of consent, no consent for legal purposes. 

So while the language of the ABA resolution doesn’t mention burdens of proof or presumptions, it doesn’t need to, as KC Johnson and Stuart Taylor, Jr. argue in today’s Wall Street Journal: 

State laws in California, Connecticut and New York require educational institutions to find against students or personnel accused of sexual misconduct unless they can prove the accuser gave “affirmative consent,” meaning a positive manifestation by words or actions of consent to each sex act during an encounter. In practice, as Janet Halley of Harvard Law School has noted, these statutes authorize “proceedings in which the decision maker effectively presumes guilt and requires the accused to disprove it.”

(Prof. Halley, incidentally, is among four Harvard law professors with feminist bona fides who have challenged the lack of due process in current Title IX proceedings — the others are Jeannie Suk Gersen, Elizabeth Bartholet, and former federal judge Nancy Gertner — profiled by Wesley Yang in an excellent new piece for the Chronicle of Higher Education). 

Four days ago more than 100 members of the American Law Institute, the leading scholarly clearing house for discussions of the evolution of the law, came out strongly against the changes, noting that ALI’s own membership had overwhelmingly rejected a similar proposal in 2016. The letter was signed by many prominent law professors, judges, and practicing lawyers. Perhaps less surprisingly, the National Association of Criminal Defense Lawyers (NACDL) has helped lead the resistance to the new resolution. 

Also four days ago, per Lara Bazelon on Twitter, the ABA’s own Criminal Justice Section “unanimously vote[d] to withdraw co-sponsorship of the sexual assault consent resolution and to ask the House of Delegates to table it.”

Let’s hope this sends an unmistakable message to the full ABA not to proceed with the resolution. [slightly edited for space and redundancy]

There’s an ongoing debate about how we should evaluate the effectiveness of school choice policies. Last month, two education professors argued that standardized test scores should be “the measure of success.” Other education researchers – including myself – contend that we should take a more holistic approach by looking at other relevant long-term outcomes as well. After all, schools can do so much more than shape test scores. Here’s a case in point.

A just-released evaluation found that a school choice program Colombia improved vital long-run outcomes up to 20 years after students applied for private school vouchers in 1994.

The research team, led by Stanford University’s Eric Bettinger, found that winning a lottery to use a voucher to attend a private school in 6th grade increased earnings by 8 percent overall and 11 percent for females by the time the students reached around 33 years of age. In other words, it looks like school choice could help close the gender wage gap in Colombia. The program also increased adult earnings by 17 percent for students who applied to vocational schools.

Higher earnings should be enough to demonstrate this voucher program’s success. But don’t drop the mic just yet.

The study also found that winning the voucher lottery reduced the likelihood of having a child as a teenager by 18 percent. Voucher lottery winners were also 17 percent more likely to complete secondary school on time and 13 percent more likely to enroll in tertiary education than the control group. The authors also reported that these long-run gains “occur at a low or possibly negative cost to taxpayers,” implying the program has a positive return on investment.

We should consider all relevant outcomes when evaluating any education policy, especially since families don’t want schools solely focusing on standardized tests. Families want schools to help their children succeed in life. And it looks like private schools in Colombia are doing just that.

The Wall Street Journal’s opinion page created a buzz yesterday with its editorial “A Navarro Recession?” It charged that, if the nation soon suffers an economic downturn, it would be the product of the trade wars President Trump has initiated on the advice of Peter Navarro, director of Trump’s Office of Trade and Manufacturing Policy. 

The lede:

Multiple reports out of the White House last week say President Trump overruled all of his economic advisers other than Peter Navarro when he decided to impose new tariffs on China. Global and American economic conditions have been heading south ever since, so perhaps we should call this the Trump-Navarro trade-policy slowdown.

Later yesterday, Navarro fired back at the WSJ, saying on Fox Business Network, “It doesn’t sound a lot different from the People’s Daily in terms of the news that it puts out,” referring to the Chinese Communist Party newspaper. Clearly, the editorial has gotten under his skin.

It’s been a long, strange trip for Navarro. At one time, he was a fairly orthodox, market-friendly economist, even writing on the virtues of free trade in his 1984 book The Policy Game (as well as contributing a couple of items to my publication, Regulation). Yet, somewhere in the 2000s, he developed Sinophobia and authored a series of books on the ostensible threat China poses to the U.S. and world economies. One of those books, 2006’s The Coming China Wars, brought him to Trump’s attention and ultimately led to his White House post.

If you’re interested in learning about the strategist of Trump’s trade wars and the problems with his current ideas, check out Pierre Lemieux’s excellent article “Peter Navarro’s Conversion,” the cover story for Regulation’s Fall 2018 issue. With Trump imposing tariffs left-and-right, Pierre’s final graf is as timely today as it was a year ago:

The maintenance of economic freedom at home—which includes the freedom to import what one wants if one finds the terms agreeable—is the only individualist, coherent, and realistic policy. The young Peter Navarro seemed to understand that. Sadly, today’s Navarro does not.

Earlier this week, a photo out of Galveston, Texas went viral across social and traditional media. The photo shows two white Galveston police officers on horseback leading a handcuffed black man down the street with a rope. For many, particularly African Americans, the image evoked collective memories of the bygone era of slavery, when fugitive slaves would be captured by armed patrols and marched back to their white owners in shackles. The Galveston police chief, Vernon Hale, apologized and took blame for the incident, attempting to deflect the massive public outrage at the two officers for exercising what he admitted was “poor judgment.”

Whether or not the two officers were cognizant of the racial implications of their actions at the time, the public parading of any handcuffed individual is degrading and humiliating. Like “perp walks,” warrantless roadside searches, and the gratuitous use of mugshots splashed across local news, presumptive innocence—that all arrestees have until they are convicted—is effectively ignored by law enforcement. The ability of police to impose public shame on individuals is an underappreciated aspect of how officers conduct themselves on a day-to-day basis, even when they are operating within the boundaries of the law. Put another way, just because the police may do something to someone doesn’t mean they should.

In a situation like this, the damage goes beyond this man and his family. Imagine that you are an African American in Galveston and you saw police treat a black man like that. The department said that the officers did this because there was no transport vehicle available to take him for processing. Maybe that’s true, maybe it isn’t. Regardless, you know what you’ve seen in your newspapers and splashed across the internet. You know the message that act sends to the black community, irrespective of the officers’ intent. Is that photo going to increase or decrease your belief that those officers will treat you fairly if you encounter them?

This incident, which has undoubtedly damaged the department’s reputation, is yet another example of what we in the Project on Criminal Justice call “self-defeating policing.” For a police department to be effective at closing cases for serious crimes, it needs the cooperation of residents to tell them what they know. As much as the police procedural television dramas rely on high-tech forensics labs or psychological profilers to catch killers, the reality is that cops need information from the communities where a crime happened. A community that does not trust its police force is far less likely to cooperate with them to bring violent people to justice. In this respect, the entire community of Galveston—and particularly its black residents—have been harmed by this sorry episode.

But returning to the man who was subjected to this treatment, he doesn’t have much recourse against the department. The officers didn’t violate any policy, so they cannot be punished, let alone fired, for their behavior—assuming, that is, their account of how this happened is true. There is no criminal law against police doing this to someone, so no criminal charges are possible. But, in a more just system, there is an argument that what they did to him was damaging and violative of his rights. If that were the case, he should be able to sue the officers for that violation. Unfortunately, we don’t live with that system.

Not only have the courts given police officers a wide-amount of latitude on the use of force and detention against individuals, they have insulated police further with the doctrine of qualified immunity (QI). Qualified immunity is a protection from civil liability for a rights violation that isn’t “clearly established” in the jurisdiction in which it happened. That is, if this man were to try to sue the officers for their actions, even if a court found they violated his rights, QI may prevent the lawsuit from going forward if another court in the federal jurisdiction hadn’t previously ruled this particular kind of incident was a rights violation. This is speculative, of course, but this illustrates the systemic lack of accountability for police officers—no administrative, criminal, and civil consequences—for what many citizens consider to be plainly wrongful conduct.

One might hope that the damage of this act would be limited to Galveston, as every police department is different and what happens in one jurisdiction isn’t necessarily indicative of what would happen in another. Yet, on Thursday, at least two police unions in Texas defended the officers. Via CNN:

“Contrary to what some have said, these officers did not use poor judgment. They did exactly what they are trained to do,” said Kevin Lawrence, the Executive Director of the Texas Municipal Police Association.

Statements like this are not how you build trust in communities that have scores of reasons to distrust police. Police unions have an obligation to defend their members from unfair treatment by their employers, but they rarely consider the impact of their public excuse-making in the face of any criticism of police officers. The Galveston officers are in little danger of any serious repercussions from this incident, yet the unions are coming out defending their actions because, to them, it’s just fine to humiliate people like this. In polite society, when people are wronged, even accidentally, we expect—at the very least—an apology; an acknowledgment of the harm done to someone else. Police unions seem to be constitutionally incapable of admitting fallibility or error in even the most egregious circumstances.

So long as police officers are shielded from accountability for their actions against the public, they will continue to fail in their duty to serve and protect.

Dennis Prager recently made a case for government management of social media in the Wall Street Journal. Prager is a conservative so it might seem odd to find him plumping for government control of private businesses. But he is a part of a new conservatism that rejects the older tradition of laissez-faire that informed the right. What could justify Big Government regulation for tech companies?

Prager argues that the companies have a legal obligation to moderate their platforms without political bias. He thinks they are biased and thus fail to meet their obligation. But the companies have no such obligation and to be charitable, it is far from clear that they are biased against conservative content.

Let’s look at the law first. Section 230(c) of the Communications Decency Act of 1996 says:

1)…No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2) …No provider or user of an interactive computer service shall be held liable on account of…any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected;

Section 230 did seek to promote free speech and to empower companies to moderate content on their platforms. Prager doesn’t see that promoting free speech requires exempting the companies from the legal obligations of publishers and speakers. A newspaper can review and edit material it publishes and thus should take responsibility for the harms it might do. Social media giants like Facebook have billions of users producing content. They can hardly review all of it before it appears. If they were held liable for the content, the companies would likely take no chances and suppress all content that might cause harm and legal liability. In other words, absent immunity from liability, the companies would sharply restrict speech on their platforms; the liability exemption thereby promotes free speech.

Of course, if they did not nothing at all, the platforms would become much less valuable to users. The law also empowers the platforms to restrict content that is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” Prager notices the obscenity part, but somehow misses the words “otherwise objectionable.” If YouTube decided Prager’s videos were neither violent nor obscene but were “otherwise objectionable,” the company could restrict access to them. In other words, the law empowers YouTube to be biased against Prager if they wish. And Prager thinks they do have it in for him and other conservatives. As you might have guessed by now, there is lot less to this claim than meets the eye.

Consider what Prager himself tells us: YouTube now hosts 320 Prager University videos that get a billion views a year. Indeed, a new video goes up every week. Not exactly the Gulag is it? He complains that 56 of those 320 videos are on YouTube’s “restricted list” which means (according to Prager) “any home, institution or individual using a filter to block pornography and violence cannot see those videos. Nor can any school or library.” In other words, YouTube has “restricted access” to materials on its site its managers consider “otherwise objectionable.” Was YouTube biased against Prager and other conservatives? Prager himself notes leftwing sites also ended up on the restricted list. But that’s different, he says, because their videos are violent or obscene while his are not.
Prager fails to mention that videos from The History Channel are restricted at twice the rate of his films. Hardly a bastion of left-wing vulgarity, The History Channel’s videos often discuss historical atrocities and totalitarian regimes. While these clips may be educational, Google seems to believe that the 1.5% of YouTube users who voluntarily opt-in to restricted mode wish to avoid even educational discussions of atrocity. Dennis Prager’s video about the Ten Commandments is restricted for similar discussions of the Nazi’s Godless regime. It is far from unreasonable to allow parents to decide how their children are taught about such horrors. A reasonable conservative might even applaud such support for the family.

Who gets to decide whether left wing videos or historical documentaries are different than Prager’s videos? The law says YouTube gets to decide. Imagine you took the words “otherwise objectionable” out of Section 230. Who would then decide about restricting material? In the past, conservatives would have said the owners and managers of private property decide how best to use their assets. But the times seem to be changing.

Prager cites a study by a Columbia University researcher that purports to prove online bias against conservatives. The study cites 22 cases covered by the press in which Twitter suspended the accounts of individuals, almost all of whom were Trump supporters. Prager is arguing that a sample of just 22 cases from Twitter alone proves systemic bias against…whom? Conservatives? The list of 22 suspended accounts is, “a who’s who of outspoken or accused white nationalists, neo-Confederates, holocaust deniers, conspiracy peddlers, professional trolls, and other alt-right or fringe personalities…It does not include any mainstream conservatives, unless, I suppose, you count recently-indicted Trump campaign advisor and ‘dirty trickster’ Roger Stone.” Is Prager broadening the big tent of conservatism here? If not, what does this study, as limited as it is, prove about bias against conservatives?

Prager’s other argument about bias comes in the form of a question: “Do they [conservatives skeptical of his views] think Google, Facebook and Twitter—the conduits of a vast proportion of the free world’s public information—don’t act on their loathing of conservatives?” This question nicely combines two kinds of logical fallacies. It assumes the truth of what is to be proved, the fallacy of pettio princippi while appealing to confirmation bias among Prager’s readers. Sadly, this may be the most effective rhetoric in the essay, notwithstanding its logical faults. But it does nothing for his case against Google.

The final paragraph of the essay is perhaps the most revealing about the new conservatism. He draws an analogy to the airlines who are treated as common carriers and expected to provide service to all. Of course, the airlines were also heavily regulated for many decades to the detriment of consumers. Prager gestures in this way toward a future of heavy regulation for social media, a future that will be novel if not conservative. “Not conservative” that is, if what conservatives said in my lifetime about the proper limits of government ever had any meaning at all beyond the moment they were spoken.